M/s. Coimbatore Enterprises and Holdings Ltd. Versus GST & CE, Coimbatore
Service Tax
2019 (1) TMI 1039 – CESTAT CHENNAI – TMI
CESTAT CHENNAI – AT
Dated:- 16-1-2019
Appeal No. ST/42246/2018 – FINAL ORDER No. 40115/2019
Service Tax
Shri P. Dinesha, Member (Judicial)
Shri A. Gopal Kanakaraj, CA for the Appellant
Shri L. Nandakumar, AC (AR) for the Respondent
ORDER
The dispute relates to the period 01.01.2013 to 30.09.2013. By this appeal the assessee is challenging the penalty levied by the adjudicating authority and confirmed in the impugned order by the Commissioner GST & CE (Appeals), under Section 77 and 78 of the Finance Act, 1994.
2. Today when the matter came up for hearing, Shri Gopal Kanakaraj, CA, appearing for the assessee-appellant submitted that the first appellate authority has modified the order of the adjudicating authority to the extent of upholding the invocation of extended period, recovery of late fee and penalties imposed under Section 77
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. Hence, except delay in filing service tax electronically, no other contravention of any of the provisions of service tax, for which penal action under Section 78 of the Act ibid is unwarranted. Further, appellant voluntarily paid penalty in addition to tax, interest and late fee, which would establish its bonafide actions. He relies on various Tribunal rulings setting aside penalty under Section 78. He relies on the following case laws in support of his contentions:
1. 2017 (4)GSTL 57 (Tri.-Mum.) Raghuvir Motors Agencies PVt. Ltd. Vs. CCE & ST, Aurangabad
2. 2018 (14) GSTL 281 (tri.-Del.) R.K. Refreshment & Enterprises (P) Ltd. Vs. CCE, Raipur
3. Per contra, Ld. AR opposes the arguments put forth by the appellant. He submits that after initiation of investigation by the department only the appellant paid the service tax along with interest, late fee and filed ST-3 returns and hence penal action for the act of non-compliance of the provisions of Finance Act on the part of the appel
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etc. and secondly, the provisions of Section 78 stand controlled by Section 80 of the Finance Act, 1994, ibid. This makes that for every default, penalties under Section 77 and 78 are not automatic.
4.2 In the case on hand, much before the issuance of show cause notice the assessee has got itself registered, paid the taxes along with applicable interest and this also is established by the fact that the same is appropriated in the Order-in-Original. In the SCN as well as the orders of the lower authorities, the Revenue has but for reiterating the wordings in the Sections itself, has not gone beyond that to put on record any reasons on the alleged malafides, fraud or suppression, etc. In the event, I am of the considered opinion that the impugned penalties cannot sustain for which reason, I set aside the impugned order confirming penalty. Consequently, the penalties are directed to be deleted and the appeal stands allowed.
(Operative part of the Order pronounced in the open Court)
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