M.L. Yarns (India) Pvt. Ltd. Vs. Commissioner of Central Excise - Court Judgment

Excerpt:
2. the assessee is providing the c & f services and came into service tax network from 16.07.1997. the assessee had failed to pay the service tax under section 68 of the finance act and also file the return in time as per section 70 of the finance act, show-cause-notices dated 24.09.2003 and dated 21.01.2004 were issued with the provisions of the aforesaid provisions and levied of service tax including penalty amount. this was adjudicated by the assistant commissioner (service tax), central excise & customs, nasik, by the order-in-original dated 30.03.2003 wherein he has confirmed the service tax amounting to rs. 1,52,475/- and also imposed penalty of rs. 10,000/- under section 76 of the finance act, 1994 and interest is also ordered. he also further ordered penalty to the tune of rs. 1,000/-under section 77 of the act.the assessee has accepted the order and paid the amounts as directed, including interest and penalty amount on 10.05.2004. the order-in-original passed by the assistant commissioner (st), central excise & customs, nasik, which was reviewed by the commiss oner (revisional) on 21.02.2006 after issuing a show-cause-notice dated 24.01.2006. ultimately the commissioner (revisional) has ordered under section 84 of the finance act imposition of penalty @rs. 100/- per day every day till the service tax has paid. there was no enhancement of the penalty under section 77 of the act. the assessee aggrived by the impugned order came before this tribunal.3. the ld. counsel for the appellants relied upon the case law of cce, bangalore-ii v. sunitha shetty 2004 (174) elt 313 (kar.). this is also identical matter, wherein the commissioner has reviewed the order of assistant commissioner and imposed penalty of rs. 100/- per day and the same was challenged before the tribunal. the tribunal has held that commissioner was not justified in reviewing the order passed by dy.commissioner has exercised discretion conferred on him under section 80 of the act. thereupon, the department had filed a civil petition in the hon'ble high of karnataka inviting the finding on the scope and object under section 76 of the finance act. in that the hon'ble high court of karnataka held that the question of interpretation of section 76 of the act does not arise out of the civil petition filed, because the tribunal is not going to the question, therefore, civil petition was dismissed. this case to show the order of the tribunal was upheld by the hon'ble high court of karnataka.4. having regard to the fact that the assessee already deposited the confirmed service tax including penalty amount and interest, the same would be sufficient to me the requirement under section 86 of the finance act. therefore, no further deposit is warranted as confirmed amount has already been paid. the assessee is entitled for the stay in operation of the impugned order. accordingly, stay is granted. list the appeal in its turn for regular hearing.

Judgment:
2. The assessee is providing the C & F Services and came into Service Tax Network from 16.07.1997. The assessee had failed to pay the Service tax under Section 68 of the Finance Act and also file the return in time as per Section 70 of the Finance Act, Show-Cause-Notices dated 24.09.2003 and dated 21.01.2004 were issued with the provisions of the aforesaid provisions and levied of Service Tax including penalty amount. This was adjudicated by the Assistant Commissioner (Service Tax), Central Excise & Customs, Nasik, by the Order-in-Original dated 30.03.2003 wherein he has confirmed the Service Tax amounting to Rs. 1,52,475/- and also imposed penalty of Rs. 10,000/- under Section 76 of the Finance Act, 1994 and interest is also ordered. He also further ordered penalty to the tune of Rs. 1,000/-under Section 77 of the Act.

The assessee has accepted the order and paid the amounts as directed, including interest and penalty amount on 10.05.2004. The order-in-original passed by the Assistant Commissioner (ST), Central Excise & Customs, Nasik, which was reviewed by the Commiss oner (Revisional) on 21.02.2006 after issuing a Show-Cause-Notice dated 24.01.2006. Ultimately the Commissioner (Revisional) has ordered under Section 84 of the Finance Act imposition of penalty @Rs. 100/- per day every day till the Service Tax has paid. There was no enhancement of the penalty under Section 77 of the Act. The assessee aggrived by the impugned order came before this tribunal.

3. The ld. counsel for the appellants relied upon the case law of CCE, Bangalore-II v. Sunitha Shetty 2004 (174) ELT 313 (Kar.). This is also identical matter, wherein the Commissioner has reviewed the order of Assistant Commissioner and imposed penalty of Rs. 100/- per day and the same was challenged before the Tribunal. The tribunal has held that Commissioner was not justified in reviewing the order passed by Dy.

Commissioner has exercised discretion conferred on him under Section 80 of the Act. Thereupon, the Department had filed a Civil Petition in the Hon'ble High of Karnataka inviting the finding on the scope and object under Section 76 of the Finance Act. In that the Hon'ble High Court of Karnataka held that the question of interpretation of Section 76 of the Act does not arise out of the Civil Petition filed, because the tribunal is not going to the question, therefore, Civil Petition was dismissed. This case to show the order of the tribunal was upheld by the Hon'ble High Court of Karnataka.

4. Having regard to the fact that the assessee already deposited the confirmed Service Tax including penalty amount and interest, the same would be sufficient to me the requirement under Section 86 of the Finance Act. Therefore, no further deposit is warranted as confirmed amount has already been paid. The assessee is entitled for the stay in operation of the impugned order. Accordingly, stay is granted. List the appeal in its turn for regular hearing.