TMI Blog2016 (4) TMI 155X X X X Extracts X X X X X X X X Extracts X X X X ..... o their client nor collected any amount towards the service tax. The appellant paid the entire service tax and interest from their own pocket. So, this itself is a burden on the appellant. When the assessee discharged service tax alongwith interest before issuance of show cause notice penalty has been waived, therefore, when the appellant themselves after discharging the service tax liability along with interest, opted the waiver of show cause notice the case is clearly falls under the provisions of Section 73(3) of Finance Act and the appellant has made out a fit case for waiver of penalty. The penalties and fees imposed under Sections 76, 77, 78 and 70 of the Finance Act, 1994 by invoking Section 73(3) read with Section 80 are waived of. - Decided in favour of appellant - Appeal No. ST/89382/14 - A/85874/16/SMB - Dated:- 19-2-2016 - Ramesh Nair, Member (J) For the Appellant : Shri O.P Lalwani, Consultant For the Respondent : Ms. P. Vinita Sekhar, DC (AR) ORDER Per Ramesh Nair This appeal is directed against Order-in-Appeal No. AV(143) 147/2014 dated 4/7/2014 passed by the Commissioner (Appeals) of Central Excise Customs, Aurangabad wherein he has r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 77; 2,000/- per return was imposed under Section 70 of the Finance Act, 1994 read with Rule 7C of Service Tax Rules, 1994. A penalty of RS.5,000/- on M/s. P.S. Karde (proprietorship firm) C/o. M/s. Godavari Bio-Refinery Pvt Ltd was also imposed under Section 77 of the Finance Act, 1994. Being aggrieved by the Order-in-Original No. 30/ST/ADC/2011 dated 13/12/2011 appellant filed appeal before the Commissioner (Appeals) which was rejected, therefore the appellant filed this appeal only for waiver of penalties. 3. Shri. O.P. Lalwani, Ld. Consultant appearing on behalf of the appellant submits that the appellant is a small time individual service provider. He is only 11 th class passed and had no knowledge about the Service Tax Provisions. As per bonafide belief, he was under impression that he is providing the services of supplying the water in the tanker to M/s. Godavari Bio-Refinery Pvt Ltd, therefore he has not paid the service tax during the period 2007-08 and 2008-09. It is recorded in the show cause notice that on the persuasion of the departmental officer, convincing with the officer, without any protest the appellant have discharged the entire service tax amount along with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2) S.T.R. 357 (Tri. Chennai)] (b) Mulund Gymghana Vs. Commissioner of Service Tax, Mumbai [2009 (15) S.T.R. 543 (Tri. Mumbai)] (c) Quality Welding Works Vs. Commissioner of C.Ex. Ludhiana [2011 (21) S.T.R. 187 (Tri. Del)] (d) Mohammand Mustkeen Vs. Commr. of C. Ex. Chandigarh [2011 (22) S.T.R. 170 (Tri. Del.)] 5. I have carefully considered the submissions made by both the sides and perused the record. 6. I find that the appellant on advice of the Jurisdictional Asstt. Commissioner, on his visit to Range Office, agreeing with the Asstt. Commissioner, discharged the entire service tax liability along with interest. It is the submission of the appellant that the they were assured that no further action will be taken if the payment of service tax along with interest is made. It is cleare that the appellant paid entire service tax along with interest and opted the waiver of the show cause notice with clear intention that they do not want to contest payment which they have made with a clear view that no action should be taken against them. I find that the appellant is a small time service provider without any higher education background. It is also found that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and perused the provisions of Section 73(3) of the Finance Act, 1994 which are reproduced here as under:- Sec. 73(3)- Where any service tax has not been levied or paid or has been short levied or short paid or erroneously refunded, the service tax, or the person to whom such tax refund has erroneously been made, may pay the amount of such service tax, chargeable or erroneously refunded, in the basis of his own ascertainment thereof, or on the basis of tax ascertained by a Central Excise Officer before service of notice on him under sub section (1) in respect of such service tax, and inform the Central Excise Officer of such payment in writing, who, on receipt of such information shall not serve any notice under sub-section (1) in respect of the amount so paid. 6. On perusal of the said provision, we find that it is a mandate of the Act that if any assessee does not pay service tax in time and does not file the return in time, but later on, on their own ascertainment thy pay service tax along with interest and file the return and inform the department in writing, in that case show cause notice is not required to be issued. Same has been clarified by the Board circular cit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cause notice should have been issued. The judgement has been followed by this Tribunal in the case of M.R. Coaltings Pvt. Ltd. vs. CCE, Rajkot - 2013 (30) S.T.R. 76 (Tri.-Ahmd.) . 10. The issue of penalty came up for the consideration before the High Court of Karnataka in the case of Commissioner of Service Tax, Bangalore vs. Master Kleen - 2012 (25) S.T.R. 439 (Kar.) . The ratio from the judgement of Hon'ble High Court in the case of Master Kleen is reproduced below:- The Revenue has preferred this appeal against the order passed by the Tribunal [2010 (17) S.T.R. 365 (Tribunal)] setting aside the orders passed by the lower authorities, imposing penalty under Section 76 of the Finance Act, 1994 for non-payment of service tax on due dates. 2. The material on record discloses that the assessee on being pointed out by the authorities for not paying the service tax, has paid the service tax with interest even before the issue of show cause notice. Sub-section (3) of Section 73 of the Finance Act, 1994, categorically states that if tax and interest is paid and the same is informed to the authorities, then the authorities shall not serve any notice calling upon the authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dings that the adjudicating authority has come to a conclusion that the issue involved in this case is regarding waiver of penalty. The said provisions exist in Section 80 of Finance Act, 1994. The first appellate authority's findings that the adjudicating authority has not invoked the provisions of Section 80 seems to be incorrect as the adjudicating authority has specifically held that waiving penalties imposed under Sections 76, 77 78 of Finance Act, 1994, which can be only under the provisions of Section 80. 6. I find that the findings of the adjudicating authority in this case carry a very important aspect which indicates that the appellant had voluntarily paid almost 80% of the amount and balance amount before issuance of show cause notice. It is also to be noted that the appellant herein is a proprietary concern and could not have been aware about the intricacy of discharge of Service Tax liability within the time period. In my view, this is a fit case for invoking the provisions of Section 80 of Finance Act, 1994. Accordingly, I invoke the provisions of Section 80 of Finance Act, 1994 and set aside the penalties imposed on the appellant by the first appellate autho ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
