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2015 (10) TMI 2461 - CESTAT MUMBAI

2015 (10) TMI 2461 - CESTAT MUMBAI - 2015 (40) S.T.R. 1098 (Tri. - Mumbai) - Service Tax Liablity - Cargo handling, repairs and maintenance, storage and warehouse and technical inspection and certification - Whether adjudicating authority erred in not imposing penalty under Section 76 of Finance Act from 18/04/2006 i.e., ₹ 200/- per day or 2% of amount of tax payable? - Revenue contends that since issue has already been decided appeal for non-taxability by assessee should not be allowed - .....

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was being heard - Period from 18/04/2006, penalty as imposed under Section 76 has to be applied in letter and spirit of said section and provisions as it stood in the statute needs to be applied - Decided in favour of Revenue. - APPEAL NO: ST/297/2009 - Final Order No. A/2670/2015-WZB/STB - Dated:- 17-8-2015 - Shri M V Ravindran, Member (Judicial) And Shri C J Mathew, Member (Technical) Shri R.K. Das, Dy. Commissioner (AR) : For the Petitioner Shri V. Sridharan, Sr. Advocate with Shri Prakash S .....

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in this case is regarding service tax liability on the respondent during the period 01/04/2003 to 31/03/2007. It is his submission that an appeal filed by the respondent against the very same order-in-original, this Tribunal vide order No. A/476/14/CSTB/ CI dated 28/02/2014 is dismissed. It is his submission that the adjudicating authority has imposed a penalty of ₹ 200/- per day from 18/04/22006 which is not in consonance with the provisions of Section 76. He would draw our attention to .....

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non-taxability in this appeal which should not be allowed to be argued as the issue has already been decided. It is his prayer that the appeal of the Revenue be allowed. 4. The learned sr. advocate appearing on behalf of the respondent would submit that the issue involved in this case, though is in respect of enhancement of penalty, the issue needs deeper consideration. He would submit that the appeal of the Revenue should be dismissed as the question of imposing the penalty arises only when th .....

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d certification services. It is his submission that the penalty proceedings which have been initiated against the appellant was in respect of an assessment procedure. He would submit that as per the provisions of Section 76 penalty can be imposed on the assessee, only if he is liable to pay the service tax which in his submission is application of Section 76 talks about liability to pay service tax, he would submit that at the time of passing of the impugned order there was no liability to pay s .....

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different from the assessment procedures and in the penal proceedings argument, can be taken up as to non-taxability of the services, law is settled by the apex Court in the case of CIT vs. Anwar Ali 1970 (2) SCC 185. It is his further submission that Section 76 contemplates all payments of imposition of penalty in addition to the service tax liability and interest thereof; which in the case in hand, is absent as the tax liability and interest are already paid as on date of order-in-original. H .....

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r the proposition that the expression in addition refers to a state of affairs in which there has been a tax before. He would also submit that this Tribunal in the case of Antony Garages Pvt. Ltd. vs. Commissioner of Central Excise 2015 (38) STR 49 has held that the technical inspection and certification should be related to technical inspection and not any other things. He would submit that the service tax liability on technical inspection, if gone, majority of the demand is taken care and no .....

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that the very same order-in-original as passed by the adjudicating authority was challenged by the respondent in appeal No. ST/330/2009. In the appeal filed by the respondent, they had challenged the service tax liability as confirmed by the adjudicating authority, interest thereof and also the penalties imposed. The said appeal was heard at length by this Bench on 28/02/2014 and a detailed order has been passed in final order No. A/476/14/CSTB dated 28/02/2014 and we have held that the responde .....

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e under this Chapter, who fails to pay such tax, shall pay, in addition to such tax and the interest on that tax in accordance with the provisions of section 75, a penalty which shall not be less than two hundred rupees for every day during which such failure continues or at the rate of two per cent of such tax, per month, whichever is higher, starting with the first day after the due date till the date of actual payment of the outstanding amount of service tax: Provided that the total amount of .....

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