C.C.E. Vs. KRISHNA CYLINDERS
CUSTOMS EXCISE AND GOLD(CONTROL) APPELLATE TRIBUNAL
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Ashok Jindal, J. -
(1.)THE revenue is in appeal against the impugned order wherein penalties under section 76, 77 and 78 of the Finance Act 1994 has been dropped by the Ld. Commissioner (A).
(2.)THE brief facts of the case are that during the course of the audit between the period 30.08.2006 to 31.08.2006, it was revealed that appellant has not paid the service tax during the period 01.04.2006 to 31.03.2007 on outward goods transportation services. On pointing out by the audit team the respondent paid the service tax along with interest. Thereafter, a show cause notice was issued to appropriate the amount already paid by the respondent and for imposition of penalties under section 76, 77 & 78 of the Act. The Adjudication took place and the amount already paid was appropriated against the demand of service tax and interest and various penalties under section 76, 77 & 78 of the Act were confirmed. The said order was appealed by the respondent before the Ld. Commissioner (A) who set aside the penalties under section 76, 77 & 78 of the Act. Aggrieved from the said order revenue is before us.
The Ld. AR submits that in this case the demand has been confirmed and admitted by the respondent for the extended period of limitation. Therefore, the respondent cannot escape the penalties under section 76, 77 & 78 of the Act. He drew our attention to the impugned order and submits that in the impugned order, penalties have been waived off by invoking under section 80 of the Finance Act, 1994. In fact, when extended period of limitation has been invoked and liability has been admitted by the respondent, therefore, respondent cannot take the benefit of the section 80 of the Act. He also relied on the decision of Hon'ble Court of Punjab & Haryana in the case of Machino Montel (I) Ltd. reported in : 2006 (202) ELT 398 (P&H). To submit that mere deposition of the duty demand before issuance of the show cause notice cannot give the benefit to the assessee for having imposition of penalty.
(3.)ON the other hand the Ld. Counsel appearing on behalf of the respondent submits that in this case the respondent were having bonafide belief and they were not aware of the new provisions which were applicable from 01.01.2005. Therefore, they are entitled for the benefit under section 73(3) of the Finance Act 1994 as they have paid service tax along with interest. Therefore, the show cause notice was not required to be issued to them. In these circumstances, he submits that impugned order requires to be upheld.
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