TMI Blog2019 (4) TMI 1463X X X X Extracts X X X X X X X X Extracts X X X X ..... y penalty or interest, relying upon the decision in the case of M/S. NANDGANJ SIHORI SUGAR CO. VERSUS CCE. LUCKNOW [ 2014 (5) TMI 138 - CESTAT NEW DELHI] - also, as whole exercise is revenue neutral and accordingly there is no scope of levy of any penalty. The impugned regarding penalty and interest and order is set aside - As the payment of Service Tax is not contested the same is upheld - appeal allowed in part. - Appeal No. ST/ 61/2008 & ST/ 176/2009 - Final Order No. FO/A/77156-157/2018 - Dated:- 20-9-2018 - Shri P.K.Choudhary, Member (Judicial) And Shri Bijay Kumar, Member (Technical) Shri K. Kumay, Shri S.B. Sharma, Adv. for the Appellant (s) Shri S.S. Chatopadhyaya, Suptd.(AR) for the Resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ices from the Goods Transport Owners, taxable under the category of Goods Transport Agency Services as defined under Section 65 (50b) of the Act. Accepting the Audit Objection the appellant paid the amount of service tax including cess in both the cases. Subsequently, after the payment of service tax, Department issued two show Cause Notices, one answerable to Joint Commissioner of Customs and other to the Commissioner of Customs, who adjudicated the cases imposing equal penalty under Section 76 and 78 of the Act and also interest under section 75 of the Act. Being aggrieved by the order passed by the ld. Joint Commissioner the appellant preferred appeal before the Commissioner (Appeal) who upheld the order passed by the Ld. Adjudicating Au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. Ld. Advocate further relied upon following the judgments (i) Birla Ready Mix vs. CCE [2013 (30) STR 99(Tri-Del.)] (ii) Bellary Iron Ores Pvt Ltd. vs. CCE[2010 (18) STR 406 (Tri.-Bang.)] 6. Ld. Advocate further submits that the Tribunal in case of Shree Balaji Transport Vs. CCE 2015 (38) STR (Tri-Bang) took a contrary stand in such a case also the assessee is required to pay the service tax but not interest and penalty. It was thus prayed that during the relevant time there existed a bonafide issue within the Tribunal regarding the imposition of service tax on the goods transport activities without issuance of the consignment not provided by the transport owners/operators. Ld. Advocate also re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Circular letter No. 341 dated 18/2004 TRU(Pt.) dated 17/2/2004 has clarified that during the period 1/1/2005 to 31/1/2005, no penalty may be levied on any of the provision of the Act for procedural infractions unless and until the default is on the account of deliberate, fraud, collusion etc., which condition does not arise in the instant case. 9. Against above background, it was prayed that the appeal filed by the appellant be allowed with consequential relief and impugned order be set aside/quashed. 10. Ld. AR on the other hand referred and relied on the order of the Hon ble this Tribunal in case of M/s SL Mining Industries Ltd. vs. Commissioner of Central Excise, Bhubaneshwar in ST Appeal no. ST/14/2009 dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 22. The Explanation given in the Notification gives the guidance as to the scope of clause (1) and clause (2) of the Notification. As is evident from the reading of the Explanation, individual consignment means all goods transported by a goods transport agency by road in a goods carriage for a consignee . In contra distinction to this, the first clause, fixing the exemption limit to ₹ 1,500/- is not limited to the consignment to an individual but it refers to consignment relatable to more than one consignee. In other words, while clause (1) is with reference to consignments transported in a goods carriage to different consignees, Clause (2) as seen from the Explanation refers to transport of goods by a goods tra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he provision of Finance Act, 1994. It is the argument of Ld. AR that but for Audit Objection the issue would not have come to light and the appellant would have continue to make non payment of service tax. And, therefore, imposition of penalty and interest is justifiable. It is the contention of the assessee that the situation of revenue neutrality is there as the appellant was entitled to take Cenvat Credit of the duty paid on the reversed charge basis for the payment of service tax. Since the imposition of service tax on the goods transport Agency was subject matter of dispute and the same was settled only after issuance of clarification by the CBEC by issuance of the Circular (supra). Ld. Advocate has impressed upon the fact that there w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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