CESTAT, MUMBAI BENCH
v.
Bapu
Transport
M.V.
RAVINDRAN, JUDICIAL MEMBER
APPEAL NO. ST/210 of 2006
APRIL 23,
2007
Section 80, read with
section 76, of Finance Act, 1994 – Penalty not to be imposed in certain cases –
Period September 1999 to December 2003 – Assessee had provided clearing and
forwarding agents service during relevant period, but failed to discharge,
service tax liability there on – On being pointed by revenue it paid same along
with interest before issuances of show cause notice - However on adjudication –
Adjudicating Authority confirmed demand of service tax on assessee and had also
imposed penalty under section 76 – On appeal, assessee contended that it was
not aware of levy of service tax on services rendered by him - Commissioner
(Appeals) was of view that there was reasonable cause for waiver of penalty
under section 80 in view of fact that immediately prior to 1-9-1999, service
receiver was liable to pay service tax and that service tax relating to
clearing and forwarding service was paid by assessee before issuance of
show-cause notice – He accordingly set aside penalty imposed on assessee under
section 76 – Whether on facts, Commissioner (Appeals) had correctly invoked
provision of section 80 and same did not call for any interference – Held, yes
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The assessee had provided
clearing and forwarding agents service during the period September 1999 to
December 2003 but had not discharged the service tax liability. On being pointed
by department it paid the service tax along with interest before issuance of
show cause notice. However on adjudication the adjudicating authority confirmed
the demand and imposed penalty under section 76 the on the assessee. On appeal, the assessee contended that it was
new assessee and was not aware of the imposition of service tax on it as
clearing and forwarding service provider. The Commissioner (Appeals) was of the
view that there was reasonable cause for waiver of penalty under section 80 in
view of the fact that immediately prior to 1-9-1999 the service receiver was
liable to pay service tax and that the assessee had paid service tax before
issuance of show cause notice. He accordingly set aside penalty imposed an
assessee under section 76.
On appeal:
Held
The Commissioner
(Appeals) had correctly invoked the provisions of Section 80, as in the instant
case it was on record that the assessee was not aware of the levy of service
tax on services rendered by him. It was the consistent stand of the assessee
from the date authorities visited his office and recorded the statement. In
view of the facts and circumstances, the impugned order was correct and did not
call for any interference. Accordingly, the appeal filed by the Revenue was to
be dismissed.
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