TMI Blog2009 (4) TMI 123X X X X Extracts X X X X X X X X Extracts X X X X ..... iting the same with the department - The contention of the appellants that the reversionary authority has no power to impose penalty as original authority has opted not to impose any penalty is not convincing as there is a clear violation of payment of service tax on their part - ST/ 101 OF 2008 - A/135 OF 2009/SMB/C-IV - Dated:- 16-4-2009 - ASHOK JINDAL, JUDICIAL MEMBER Ms. Kanupriya for the Appellant. N.A. Saiyed for the Respondent. ORDER 1 . This is an appeal filed by M/s. Pandurang Travels against the Order-in Revision No. 27/P-III/STC dated 17-3-2008 passed by Commissioner of Central Excise, Pune. 2. The brief facts of the case are that M/s. Pandurang Travels are engaged in providing services under the category o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emand of Rs. 2,25,784 but has taken a lenient view as regards imposition of penalty as the appellants have deposited the service tax before the issuance of show-cause notice. Upon revision of the order-in-original passed by the adjudicating authority, the Commissioner of Central Excise, Pune-III passed the impugned order imposing a penalty of Rs. 2,25,784 under section 76 and Rs.1,000 per return under section 77 of the Finance Act, 1994. Hence this appeal before me. 3. The ld. counsel for the appellants submitted that the power of review exercised by the Commissioner of Central Excise, Pune is contrary to the provisions of section 84 of the Finance Act, 1994 which states as follows: "84. Revision of orders by the Commissioner of Cent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e penalty under this clause shall not exceed the amount of service tax that he failed to pay". In this regard appellants have relied upon the decision of the Tribunal in the case of Heera Melals Ltd. v. CCE [2006] 5 STT 300 (Kol.-CESTAT). Attention was also invited to the Tribunal decision in the case of Handiman Services Ltd. v. CCE [2008] 17 STT 383 (Bang.-CESTAT) wherein it was held that once the original authority has examined the reasonable grounds and found not fit for imposing penalty then the same cannot be revised by the Commissioner. 5. Ld. advocate for the appellants further invited attention to the judgment of the Supreme Court in the matter of Hindustan Steel Ltd v. State of Orissa 1969 (2) SCC 627 wherein it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce must be in relation to tour. As they were not covered by the definition of tour operator hence the question of imposition of penalty does not arise. To a query from the Bench the ld. advocate for the appellants submitted that the question of law can be raised at any stage. During the course of arguments the appeals have filed certain copies of their payment bills. 7. The ld. JDR on the other hand, submitted that the appellants have surrendered their service lax registration on the ground that their turnover is within the exemption limits and have stopped filing of ST-3 returns and payment of service tax. However, inquiries conducted by the department revealed that the appellants continue to recover service tax from their customers wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the records. 9. After hearing both sides and perusing the records placed before me, I am of the opinion that the appellants have placed certain copies of bills which clearly shows that the total amount in the bills is inclusive of all taxes for the month of May, 2005 to November, 2005 and from November 2005 onwards it was clearly shown service tax separately in all the bills. This shows that the appellants have full knowledge that their customer M/s. Clancey Precision Components (P.) Ltd., Solapur were getting the Cenvat credit of the service tax paid to the appellants and therefore asked the appellants to show separately the service tax which is admitted by the appellants also. It is clear from the records that the appellants are hav ..... X X X X Extracts X X X X X X X X Extracts X X X X
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