TMI Blog2012 (10) TMI 877X X X X Extracts X X X X X X X X Extracts X X X X ..... eard Shri R.K. Gupta, ld . DR appearing for the appellant and Shri Udit Jain, Proxy Counsel appearing for the respondents. 2. As per facts on record, M/s Jas Enterprises was engaged in providing catering services to various customers. The said respondents was located at BH-139, Deendayal Nagar, Gwalior, M.P. On investigation conducted by the Revenue, it came to light that they provided outdoor catering services to Madhav Institute of Technology Science, Gwalior and a total payment of Rs. 7,75,540/- was received by the respondents during the period September, 2005 to October, 2006 on account of catering services. 3. Proceedings were initiated against the respondents 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 Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ants. I therefore, hold that the impugned order is not sustainable and hence the same is set aside." 4. The Revenue in their memo of appeal have contested the applicability of Notification No. 21/04 . It stands contested before us that the said Notification is not available in as much as the respondents were not located in the same premises to whom the outdoor catering services were being provided, as such the benefit of Notification No. 21/04-ST is not available. If that be so, the benefit of SSI Notification No . 6/05-ST , dtd. 01.03.09 will not be available to the respondents for the next financial year as the value of services during the preceding financial year exceeded Rs.4 lakhs, thus making the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riginal adjudicating authority stands set aside by Commissioner(Appeals. As such we are of the view that the issue involved is capable of two different interpretations. There could be a bonafide belief on the part of the assessee that in as much as he is providing the outdoor catering services to an academic institution, he is entitled to exemption. The complexity of the Notification which has already resulted in passing of a favourable order by Commissioner (Appeals), cannot be understood by a common person not very well conversant with the legal interpretations. Commissioner(Appeals) being an appellate authority has interpreted the Notification in favour of the assessee. We are of the view that when an expert officer himself 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 e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d claim that the person had a bonafide belief. The scheme of levy based on voluntary compliance cannot be reduced to voluntary payment of tax by arguing that there is no positive act of suppression involved in not taking registration under Rule 4. In this context I refer to the decision of the Apex Court in USHA RECTIFIER CORPN. (I) LTD.Vs. CCE-2011 (263) E.L.T. 655 (S.C.) . para 12 which is relevant is reproduced below: "12. Submission was also made regarding use of the extended period limitation contending inter alia that such extended period of limitation could not have been used by the respondent. The aforesaid contention is also found to be without any merit as the appellant has not obtained L-4 licence nor they had disclosed the fact 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 lis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 of the Finance Act, 1994 which has not been given in this case. Therefore following the decision of the Delhi High Court in K.P. Pouches (P) Ltd Vs UOI,- 2008 (228) E.L.T. 31 (Del.) , it is proper to give an option to pay 25% of tax amount within 30 days of communication of final order in this case. The penalty under Section 77 is also payable. Thus, I do not agree with the order dictated by Member (Judicial) in the matter of waving of penalties. Mathew John, Member (T) Per Ms. Archana Wadhwa: 16. I have heard my ld. Brother, Member(Technical) and I would like to made some observations here. First of all, I would like to make it clear that ld. Advocate appearing for the respondents have not contested the demand on the point of limitation as such no 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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