1. This appeal is directed against order in appeal dated 19/05/06, that upheld the order in original which confirmed the reduced service tax but reduced penalty.
2. The relevant fact that arise for consideration are the respondent was issued a show cause notice for the demand of service tax for the period 16/07/01 to 30/09/04, on an allegation that he was providing photography services. The said show cause notice was confirmed by the adjudicating authority with an equal amount of penalty and interest. On an appeal, the learned Commissioner (Appeals) looking into the documents produced by the respondent reduced the amount of duty payable by the respondent and consequently reduced the penalty imposed on him.
3. None appeared on behalf of the respondent. There is a communication from the proprietor i.e. the respondent to decide the matter on merits.
4. Heard the learned DR. It is his submission that the learned Commissioner (Appeals) could not have to reduced the amount of the service tax, as the respondent had not produced any of the documents before the adjudicating authority and the service tax liability was arrived at by the adjudicating authority on his self-declaration.
5. Considered the submissions made by learned DR and perused records. I find in this case, the learned Commissioner (Appeals) has considered the issue in its right perspective.
4. The appeal was fixed for hearing on 18.05.2006, Shri Dhaneshwar Ram Chakresh appellant appeared for hearing and showed original receipt book and requested to reduce the tax as per actual income from photography services. Nobody appeared from the Department.
Hence, appeal is being decided based on the submission made by the appellants.
5. It is seen from the impugned order that there is no evidence to show that the appellants have collected Rs. 1,68,000/- from the customers in respect of services rendered on photography. The show cause notice does not spell the evidence. On the other hand, the appellants have produced documentary evidence to show that the amount collected was far less. From the amounts of charges collected from the customers and on this basis, they became liable to pay service tax of Rs. 179/- alongwith interest. Therefore, the demand of Rs. 10,920/- is not sustainable, the same is reduced to Rs. 179/-.
6. It may be noticed from the above reproduced paragraphs of the findings of the Commissioner (Appeals), he has come to the conclusion of reducing the service tax liability and the penalty after taking into consideration the original receipt books and other documents produced by the respondent in proof of his actual income from photography services.
7. The provisions under Section 85(4) of the Finance Act, 1994 reads as under: The [Commissioner] of Central Excise (Appeals) shall hear and determine the appeal and, subject to the provisions of this Chapter, pass such orders as he thinks fit and such orders as he thinks fit and such orders may include an order enhancing the service tax, interest or penalty: Provided that an order enhancing the service tax, interest of penalty shall not be made unless the person affected thereby has been given a reasonable opportunity of showing cause against such enhancement.
8. It can be seen from the above reproduced provisions that the learned Commissioner (Appeals) has authority to consider and reconsider the liability of service tax interest and penalty, to come to that conclusion, he can go through the evidences that may be produced before him. To my mind, the learned Commissioner (Appeals) has correctly followed the provisions of Section 85(4) of the Finance Act and re-determined the service tax liability interest and penalty thereof.
9. Accordingly, I do not see any reason for interference in the impugned order. The appeal filed by the revenue is dismissed.