Judgment:
D.V. Shylendra Kumar, J.
1. The subject matter of the appeal filed under Section 35G of the Central Excise Act, 1944, by the Commissioner of Service tax, Service Tax Commissionerate, Bangalore, is as to whether the tax liability under the provisions of Finance Act, 2005, in respect of the activity of the respondent-assessee namely, activity of enhancing the acidic value of humic acid supplied to the assessee by its sister concern on job work, by collecting the process charges, for the period from 10-9-2004 to 28-2-2005 was liable to tax in terms of the provisions of Section 11A of the Act, on the premise that there was suppression of facts on the part of the assessee.
2. On perusal of the order passed by the adjudicating authority we find that there is not even a finding about the suppression of facts on the part of assessee, which could have enabled the adjudicating authority to invoke the provisions of Section 11A of the Act. The appellate commissioner has rightly noticed this aspect of the matter and allowed the appeal of the assessee, holding that the adjudication order, in so far as it levied tax under the provisions of the Act for the period from 10-9-2004 to 28-2-2005, is not sustainable and consequently, penalty cannot be imposed for this period.
3. Submission of Sri Jeevan J. Neeralgi, learned standing counsel for the appellant, is that the assessee having failed to file a return for the period in question, though had actually registered as a service provider, was liable to pay tax under the provisions of the Act, even prior to 1-3-2005 and therefore, it is obvious that the assessee has suppressed the taxable income (service charges) and as such the order passed by the adjudicating authority bringing to tax the amount realised by the assessee as service charges for processing certain products of its sister concern for this period should not have been either held to be bad or interfered by the appellate commissioner and should not have been confirmed by the Tribunal and this order of the Tribunal gives rise to a question of law warranting examination in this appeal under Section 35G of the Act.
4. We find that the very liability is under Section 65(19) of the Finance Act, 1994 and this statutory provision has undergone a change by the amendment given effect retrospectively from 10-9-2004, as substituted by the Finance (No. 2) Act, 2004 and again by way of amendment of Finance Act, 2005 notified on 16-6-2005, it was clarified that service provided by processing of goods is excisable. When this is the state of law, nothing can be attributed to the assessee to say that there was a suppression of facts on the part: of assessee for a period prior to issue of this notification dated 1-3-2005, when none knew about such possibilities.
5. We are of the clear opinion that the appellate commissioner has rightly interfered and the Tribunal has also very correctly confirmed the order of the appellate commissioner. Hence, there is no scope for interference with the impugned order in this appeal filed under Section 35G of the Act. Therefore, the appeal is accordingly dismissed.