Decided on January 12,2015

Bhagya Inductions Appellant
Commissioner Of Central Excise And Service Tax Respondents


Archana Wadhwa, Member (J) - (1.)ON matter being called today, nobody appeared. I heard learned A.R. on behalf of Revenue and gone through the impugned order.
(2.)ISSUE involved in the present appeal is the appellants liability to service tax under GTA Services so received by them. The appellants claim is that in most of the freight/transportation, the freight charges incurred was less than Rs. 750/ - which do not call for payment of any service tax. They also referred to the provisions of Notification No. 34/2004 -S.T. dated 03.12.2004 as also to the fact that the goods were also sent by them through Auto, Car, Taxi, etc. which do not attract payment of service tax under GTA Services.
It is seen that Assistant Commissioner took into consideration the entire pleas of the appellant and, after verifying the statements furnished by the assessee, observed that in terms of Notification No. 34/2004 -ST dated 03.12.2004 and after abatement of 75% on the value, the total service tax comes to around Rs. 21,046/ - (Rupees Twenty one thousand forty six only) which the appellant had deposited before issue of show -cause notice. As such, he held that there is no warrant for payment of late fee of Rs. 10,000/ - (Rupees Ten thousand only) in terms of Rule 7C of Service Tax Rules, 2002 inasmuch as the provisions of the said rule exempts penalty in case of sufficient reason for not filing the returns. He also observed that during the part period 01.01.2005 to 31.3.2007, when the appellant had not filed any return, there was no warrant for levy of penalty or for late fee, as the said rule permits that the returns were not required to be filed, if the assessment is Nil. For the above proposition, he relied upon the Tribunals decision in the case of B & A Multiwal Packaging Ltd. v. CCE, BBSR [ : 2006 (003) STR 673 (Tri. -Kol.)].

(3.)THE said order of the Assistant Commissioner was impugned by Revenue before the Commissioner (Appeals) and the appellate authority remanded the matter by observing that non -payment of service tax during the period 1.4.2007 to 30.9.2008 was intentional, inasmuch as, the appellant has taken the service tax Registration only on 5.1.2009 and as such, the appellant is liable to penalty under Section 78 of the Finance Act, 1994. Accordingly, he remanded the matter to the Assistant Commissioner for re -quantifying the exact service tax liability along with interest and imposition of penalty. The said order of the Commissioner (Appeals) is impugned before the Tribunal.

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