- (1.) THE appeal under Section 35G of the Central Excise Act, 1944 read with Section 83 of the Finance Act, 1994 arises from an order of the Customs, Excise and Service Tax Appellate Tribunal ('the Tribunal') dated 12 March 2014. A notice to show -cause was issued to the appellant on 29 September 2010 by the Assistant Commissioner, Central Excise and Service Tax, Mirzapur calling upon the appellant to explain why an amount by way of service tax of Rs. 74,675/ - should not be demanded in terms of the provisions of Section 73(1) of the Finance Act, 1994 (the Act) together with interest under Section 75 and why penalty should not be imposed inter alia under Sections 76, 77 and 78 for non payment of the dues on account of service tax. The Assistant Commissioner of Central Excise, Division Mirzapur confirmed the demand of Rs. 74,675/ -. In the order of adjudication dated 24 November 2011, the Assistant Commissioner observed that the appellant had deposited an amount of Rs. 74,675/ - on 9 June 2011, 7 September 2011 and 21 September 2011 and consequently ordered appropriation of the amount against the total liability of the same amount. A penalty, each of Rs. 5000/ -, was imposed under Section 77 for violation of the provisions of Sections 69 and 70. A penalty in the amount of Rs. 74,675/ - was also imposed under Section 78 which, it was directed, shall stand reduced to 25% of the service tax amount if the entire amount including the service tax, interest and penalties were paid within thirty days. The appellant filed an appeal before the Commissioner (Appeals) which was dismissed on 30 March 2012. The Tribunal has dismissed the appeal of the appellant on 12 March 2014 relying upon its decision earlier decision in M/s. Neelav Jaiswal and brothers v. Commissioner of Central Excise, Allahabad, ST/2648/2012 -CU(DB) decided on 22 July, 2013.
(2.) THE following questions of law have been pressed at the hearing of the appeal: "(i) Whether the Tribunal/Commissioner (Appeals) and the adjudicating officer were justified in imposing penalty under Sections 77 and 78 of the Finance Act, 1994 upon the appellant despite the fact that the entire tax liability as well as interest was deposited by the appellant before the passing of the order in original dated 24 October 2011. (ii) Whether the Tribunal was justified in deciding the case of appellant by placing reliance on the order and judgment pronounced in the case of Neelav Jaiswal & brothers v. C.C.E. Allahabad."
(3.) THE appeal is admitted on the aforesaid questions of law and by consent is taken up for final hearing and disposal. The appellant is engaged in providing taxable service of 'manpower recruitment and supply of agency service'. The relevant period to which the dispute relates is from April 2005 to March 2010. The appellant had received an amount of Rs. 6,54,343/ - from M/s. Hindalco Industries Limited, Renukoot. The service receiver had paid to the appellant amounts on account of provident fund in respect of the manpower supplied. Service tax was not paid by the appellant on the provident fund component which had been received from Hindalco Industries Ltd. as the service receiver. The non payment of service tax on the aforesaid component of Rs. 74,675/ - paid to the appellant between 2005 -06 and 2009 -10 was a subject -matter of the show -cause notice dated 29 September 2010.;