Shree Samarth Associates vs Commissioner Of Central Excise, ...

(Arising out of Order-in-Appeal No. PII/AV/39/2011 dated 29.4.2011 passed by the Commissioner of Central Excise (Appeals), Pune-II).

For approval and signature:

Honble Shri M.V. Ravindran, Member (Judicial) Honble Shri C.J. Mathew, 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? ======================================================

Shree Samarth Associates Appellant

Vs.

Commissioner of Central Excise, Kolhapur Respondent

Appearance: Shri V.B. Gaikwad, Advocate for Appellant

Shri B.K.Iyer, Supdt. (AR) for Respondent

CORAM: SHRI M.V. RAVINDRAN, MEMBER (JUDICIAL) SHRI C.J. MATHEW, MEMBER (TECHNICAL)

Date of Hearing: 29.09.2015

Date of Decision: 29.09.2015

ORDER NO.

Per: M.V. Ravindran

This appeal is directed against Order-in-Appeal No. PII/AV/39/2011 dated 29.4.2011 passed by the Commissioner of Central Excise (Appeals), Pune-II.

2. Heard both side and perused the records.

3. On perusal of the records, it transpires that the appellant is engaged in the activity of supply of temporary labourers to various service recipients. Appellant took registration on 12.7.2004 under the category of Manpower Recruitment Agency Services and paid the tax from time to time but did not file ST-3 returns to the department. On audit of the records of the assessee, it was noticed that the appellant had short paid the duty, hence a show-cause cum demand notice dated 15.7.2009 was issued for the demand of Rs.36,15,934/- with interest and also proposing imposition of penalties. The appellant contested the show-cause notice on merits as also on limitation. The adjudicating authority confirmed the demands raised with interest and also imposed penalties. On an appeal, the first appellate authority after considering the submissions made by the appellant, re-worked out the Service Tax liability considering the amounts received by the appellant as gross taxable value. The tax liability has been re-worked out by the first appellate authority and he also set aside some of the tax liability, which was beyond the period of limitation. The first appellate authority modified the order to the extent that the tax liability is reduced from Rs.36,15,934/- to Rs.16,25,417/- along with interest and also reduced the penalty accordingly under Section 78 and upheld penalty under Section 77 but set aside the penalty under Section 76. Revenue is not in appeal against reducing of penalty by the first appellate authority under Section 78 and setting aside of penalty under Section 76 of the Finance Act, 1994.

4. On perusal of the records, we find that the appellant has accepted and admitted that they are liable to discharge the Service Tax liability and interest thereon. They were contesting before the first appellate authority only on the quantum cum tax benefit and also extended period cannot be invoked in some demands. We find that first appellate authority has addressed all the arguments raised by the appellant and reduced the tax liability, in accordance with the law. In our considered view, the appellant having admitted the tax liability and also that all the reliefs which were claimed before the first appellate authority were extended, has not made any case for setting aside penalties.

5. We find that the impugned order is a well reasoned order; considered the entire facts of the case in its correct perspective. We do not find any reason to interfere in such a reasoned order.

6. The appeal filed by the appellant is rejected.

(Pronounced in Court)

(C.J. Mathew) (M.V. Ravindran) Member (Technical) Member (Judicial)

Sinha

1 Appeal No. ST/393/11