Shri Shantilal Nensukh Kothari vs Commissioner Of Central Excise, ...

(Arising out of Order-in-Appeal No. P-III/RP/144/2013 dated 27.5.2013 passed by the Collector of Central Excise, Pune-III).

For approval and signature:

Honble Shri Anil Choudhary, Member (Judicial)

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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? ======================================================

Shri Shantilal Nensukh Kothari Appellant

Vs.

Commissioner of Central Excise, Pune-III Respondent

Appearance: None for Appellant

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

CORAM: SHRI ANIL CHOUDHARY, MEMBER (JUDICIAL)

Date of Hearing: 01.05.2015

Date of Decision: 01.05.2015

ORDER NO.

Per: Shri Anil Choudhary

The appellant is in appeal against the order of the Commissioner (Appeals) dated 27.5.2013 whereby the appeal of the appellant was dismissed as time barred.

2. The appellant is not present despite notice. However, the appellant has filed written submissions requesting for disposal of appeal on merit.

3. Heard the learned AR and perused the records.

4. On perusal of the records, it appears that the appellant was required to pay Service Tax under the classification Renting of immovable property services. The appellant vide his reply dated 28.7.2011 submitted the month wise gross amount of rent received for the financial year 2010-11. Prior to that the appellant had filed ST-3 returns shown tax as Nil. A show-cause notice dated 13.9.2011 was issued demanding Service Tax of Rs.1,67,097/-. During the course of adjudication, the appellant appeared and admitted its tax liability by way of written submissions dated 27.6.2012. During the course of hearing before the adjudicating authority, also filed the evidence of payment of Service Tax along with interest and further requested not to impose penalty. The adjudicating authority took notice of the provisions of Section 80(2) of the Finance Act, 1994 w.e.f. 12.5.2012, the date on which the Finance Bill, 2012 received the ascent of Honble President of India. Sub-section 2 of Section 80 provide that notwithstanding anything contained under the provisions of Section 76, 77 & 78, no penalty shall be imposable on failure to pay the Service Tax payable, as on 6th day of March, 2012, for the taxable service referred to under Section 65(105)(zzzz) subject to the condition that amount of Service Tax along with interest is paid in full within the period of 6 months from the date on which the Finance Bill received the ascent of the President. The reason for denying the benefit of sub-Section 2 of Section 80 as stated in the Order-in-Original, was only for short payment of interest of Rs.3,734/-. However, there is no finding as to any default and the same on examination of the Order-in-Original appears to be difference in calculation by the appellant assessee as well as the Revenue. According to the written submissions, the appellant has paid the amount of difference in interest also in December, 2012 when the Order-in-Original came to his notice. In this view of the matter, I find that the denial of benefit under the provisions of Section 80(2) is bad and against the spirit of law.

5. Further, on examination of the impugned Order-in-Appeal, I find that the justification recorded by the Commissioner (Appeals) as to satisfaction of the service of the Order-in-Original is defective. Although the order was served on the son of the appellant, but the relevant fact is not on record as to whether the son is minor or major. Thus, the Commissioner (Appeals) have committed error in accepting the service of the Order-in-Original as proper. Moreover, the Order-in-Original itself is found to be bad and against the spirit of the Act and the Rules,

6. Thus, the appeal is allowed and the impugned order is set aside.

(Dictated and pronounced in Court)

(Anil Choudhary) Member (Judicial)

Sinha.

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