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TMI Blog2012 (10) TMI 877X X X X Extracts X X X X X X X X Extracts X X X X ..... nts for confirmation of service tax on the said services so provided by them during the period June, 2005 to October, 2006 by way of issuance of show cause notice (SCN) on 19.06.07. The respondents contested the notice on merits as also on limitation. However, the original adjudicating authority held against the respondents and confirmed the demand of service tax of Rs. 86,198/- by invoking the extended period of limitation and also imposed penalty of identical amount in terms of section 78 of the Finance Act. In addition penalty of Rs.2,000/- was imposed u/s 77 of the Act. On an appeal against the above order, Commissioner (Appeals) held in favour of the respondents on the ground that for the period June, 2005 to March, 2006, benefit of Notification No. 21/04, dtd. 10.09.04 is available to the respondents. As regards the subsequent period from April, 2006 to October, 2006, he extended the benefit of SSI Notification No.6/05. For better appreciation, relevant paragraphs of Commissioner(Appeals)'s order are re-produced below:- "6. On a careful consideration of the written and oral submission made by the appellants, I find the dispute in the present appeal relates to the leviability ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondents dis-entitled to the benefit of the Notification. 5. Ld. Advocate appearing for the respondents fairly agrees that the respondents are located outside the premises of the said academic institution. For better appreciation, we reproduce the Notification No.21/04-ST. "In exercise of the powers conferred by sub-section (1) of section 93 of the Finance Act, 1994 (32 of 1994), the Central Government being satisfied that it is necessary in the public interest so to do, hereby exempts the taxable service provided by an outdoor caterer to a client for services in relation to catering by such caterer if such caterer is located within the premises of any academic institution or medical establishment and is providing such services only within such premises, from the whole of service tax leviable thereon under section 66 of the said Act." As is clear from the above, Notification exempts the taxable services provided by an outdoor caterer to a client "if such caterer" is located within the premises any academic institution. Admittedly the respondents are not located within the premises of Madhav Institute of Technology & Science to whom the catering services were being provided. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f interprets the Notification in such a manner so as to extend the benefit to the assessee, no faults can be found on the part of the assessee to understand the law in that particular manner. In the absence of any specific allegation of malafide and any evidence to that effect produced by Revenue on record, we are of the view that penalty should not be imposed upon the respondents. 9. In view of the foregoing discussion, we allow the Revenue's appeal to the extent of confirmation of demand of duty and interest against the respondents and restore that part of the order of the original adjudicating authority vide which he has confirmed the demand and interest. Appeal is disposed of in above manner. (Pronounced in the open court) Archana Wadhwa, Member (J) Mathew John, Member (T) Per: Mathew John: 10. I have considered the order recorded by Member (Judicial) and have also seen the condition of the Notification. This is a Notification with the simple condition clearly stating that for claiming the exemption the catering establishment should be located within the premises of an academic institution. Even though this condition was not satisfied, the appellant contend that he had in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of manufacturing of the aforesaid goods to the department. The aforesaid knowledge of manufacture came to be acquired by the department only subsequently and in view of non-disclosure of such information by the appellant and suppression of relevant facts, the extended period of limitation was rightly invoked by the department." 12. There are a few decisions of the courts relating to the era when an assessee was required to file price list and classification list. After having filed such declarations, the assesse was sometimes accused of suppression which cannot be obviously maintainable. There are also decisions that where a clarification was issued by CBEC and the assesse acted on the basis of such clarification then also there cannot be a charge of suppression as in the case of Padmini Products Vs CCE 1989 (43) ELT 195 SC. But the fact of this case is different and the scheme of levy also has changed more to voluntary compliance. Once the onus is put on the assesse to comply with the regulations, it is their duty to come before the department and then declare activities and seek the guidance of the department. In this case appellant had not given the required information even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... finding on the point limitation are required to be given. 17. As regards penalty, without making any general comments, I would like to restrict myself to the facts of the present case. The question to be decided is whether the Notification No.21/04 has a simple language or not on the basis of which my ld. brother has observed that the fact of non-obtaining of Registration by the respondent amounts to suppression? If it is a simple language not capable of two different interpretations, I really fail to understand as to why officer of department of the level of Commissioner(Appeals) has interpreted the facts in a manner other than the one adopted by us. What may be simple for one, may not be simple for the other. We have to keep in mind that the respondents is a caterer and not a legal expert in which case, he cannot be held to have committed the offence of interpreting the law in a manner to have suited him and not having paid the service tax. 18. Further, non-compliance with the regulations or rules in taking the registration and non-filing of returns etc. cannot be made basis for imposition of penalties. In as much as in each and every case of evasion of duty, such basic contrav ..... X X X X Extracts X X X X X X X X Extracts X X X X
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