S.K.Electro Engineers vs Commissioner Of Central Excise

IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI

COURT No. II

APPEAL No.ST/89293/13

(Arising out of Order-in-Appeal No.NGP/EXCUS/000/ APPL/716/13-14 dated 12/07/2013 passed by Commissioner of Central Excise & Service Tax (Appeals), Nagpur)

For approval and signature:

Honble Mr. P.R. Chandrasekharan, Member (Technical)

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

2. Whether it should be released under Rule 27 of the : Yes CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3. Whether Their Lordships wish to see the fair copy : Seen of the Order?

4. Whether Order is to be circulated to the Departmental: Yes authorities?

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S.K.Electro Engineers Appellant Vs. Commissioner of Central Excise, Nagpur Respondent

Appearance: Shri.Hemant A Rajandekar, CA for appellant Shri.S.V. Nair, Asst. Comm. (AR), for respondent

CORAM: Honble Mr. P.R. Chandrasekharan, Member (Technical)

Date of Hearing : 31/03/2015 Date of Decision : 31/03/2015

ORDER NO

The appeal arises from Order-in-Appeal No.NGP/EXCUS/000/ APPL/716/13-14 dated 12/07/2013 passed by Commissioner of Central Excise & Service Tax (Appeals), Nagpur. Vide the impugned order, the learned lower appellate authority has confirmed the adjudication order dated 24/12/2012 passed by the Joint Commissioner of Central Excise, Customs & Service Tax, Nagpur, wherein service tax demand of Rs.12,32,434/- along with interest have been confirmed against the appellant and the amounts paid by the appellant towards the tax and interest liability have been appropriated. In addition, penalties have been imposed on the appellant under Sections 76, 77 & 78 of the Finance Act,1994. Aggrieved of the same, the appellant is before me.

2. The learned CA representing the appellant submits that the records of the appellant were audited by the audit party during 2009 and as soon as the short payment of service tax on their part was pointed out to them, they discharged the service tax liability along with interest thereon during March to December 2009. However, a show-cause notice in this case has been issued only in 27/06/2011, almost more than 1= years after the tax and interest liability had been discharged. Section 73 (3) of the Finance Act, provides for closure of proceedings if the tax along with interest liability has been discharged prior to the issue of notice. Even though the appellant had taken this plea before the authority, the same was not considered and therefore, the provision of Section 73 (3) should have been given effect to and there is no case of imposition of penalty. Accordingly, he pleads for setting aside the penalties.

3. The learned Assistant Commissioner (AR) appearing for the Revenue reiterates the findings of the lower authorities.

4. It is not in dispute that in the present case, the appellant had discharged the service tax liability along with interest thereon much before the issue of show-cause notice and therefore, the provisions of Section 73 (3) should have been given effect to, and the matter should have been closed. As the show-cause notice has been issued much after the payment of statutory liabilities, there was no reason to issue the notice except for imposition of penalties. In view of the specific provisions incorporated in Section 73 (3) of the Finance Act, 1994, the imposition of penalties is clearly not warranted. Accordingly, I set aside the same and allow the appeal. I make it clear that only penalties under Sections 76, 77 & 78 of the Finance Act, 1994 have been set aside. There is no provision for waiver of late fee required to be paid under Rule 7 (c) of the Service Tax Rules, 1944 and the appellant is liable to discharge the same.

(Dictated in Court)

(P.R. Chandrasekharan) Member (Technical)

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