S.D.Sharma & Associates vs Cce, Panchkula

Customs Excise and Service Tax Appellate Tribunal21 January 2015

CitationAppeal No. ST/555/2009-Cus (DB)

Ratio decidendi

The rule this decision rests on

The Tribunal did not find an intent to evade duty established on the record, since the non-payment was identified only by comparing the income-tax statement with the ST-3 returns; absent a definite intent to evade, the penalty under section 78 of the Finance Act, 1994 is not sustained, save to the extent already paid by the appellant, where the assessee has paid the service tax before the show cause notice and deposited the reduced penalty within thirty days of the impugned order.

Written by Miss Lucy from the judgment below, not taken from a headnote.

Judgment

As delivered

CUSTOMS, EXCISE AND SERVICE TAXAPPELLATE TRIBUNAL,WEST BLOCK NO.II, R.K. PURAM, NEW DELHI-110066CIRCUIT BENCH AT CHANDIGARHAppeal No. ST/555/2009-Cus (DB)

(Arising out of Order-in-Review No.8/Commr/Rev/PKL/2009 dt.23.3.2009 passed by Commissioner of Central Excise (Appeals), panchkula)

S.D.Sharma & Associates Appellants

Vs.

CCE, Panchkula Respondent

Appearance:

Present for the Appellant: Shri Deepak Gupta, Advocate

Present for the Respondent: Shri D.V.Nagvenkar, AR

HonbleMr.P.K.Das, Member (Judicial)

HonbleMr.P.S.Pruthi, Member (Technical)

Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No

2. Whether it would be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? No

3. Whether their Lordships wish to see the fair copy of the order?

seen

4. Whether order is to be circulated to the Department Authorities?

Yes

Coram:Honble Mr.P.K.Das, Member (Judicial)

HonbleMr.P.S.Pruthi, Member(Technical)

Date of Hearing/decision: 21.01.2015

FINAL ORDER NO.51071/2015

PER: P.S.PRUTHI

The appellant is in appeal against the impugned Order-in-Revision imposing penalty of Rs.1,53,658/- under section 78 of the Finance Act, 1994.

2. The facts of the case are that the appellant who provided architect service were found to have not declared the correct value of income under ST-3 return as compared to income-tax return, the demand of service tax was confirmed alongwith penalty but penalty was not imposed under section 78 of the Finance Act. The appellant have pleaded for lenient view having deposited amount of service tax, interest and penalty under section 77 and 25% of penalty under section 78 of Finance Act, 1994.

3. Heard both sides and considered the submissions.

4. We find in this case that non-payment of service tax was taken into account on comparison of income-tax statement and ST-3 returns. Therefore mens-rea that is definite intent to evade duty is not established in this case. The appellant have not only paid service tax prior to issue of show cause notice, they have also deposited 25% penalty within thirty days of communication of the impugned order. In this view of the matter, a lenient view is called for. We accordingly set aside the penalty except to the extent penalty already paid by the appellant.

5. The appeal is disposed of in the above terms.

(Pronounced in the court)

(P.S.PRUTHI) (P.K.DAS)

MEMBER (TECHNICAL) MEMBER (JUDICIAL)

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