COMMISSIONER OF CENTRAL EXCISE & SERVICE TAX Vs. THE MAHALAXMI UDYOG
LAWS(CE)-2015-2-27
CUSTOMS EXCISE AND GOLD(CONTROL) APPELLATE TRIBUNAL
Decided on February 20,2015

COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX Appellant
VERSUS
The Mahalaxmi Udyog Respondents




JUDGEMENT

Dr. D.M. Misra, Member (J) - (1.)THIS Appeal is filed by the Revenue against the Order -in -Appeal No. 03/RAN/2010 dated 14.01.2010.
(2.)BRIEFLY stated facts of the case are that the Respondent during the relevant period, i.e. 01.04.2006 to 31.12.2006, had rendered taxable services under the category of Erection, Commissioning or Installation Services to M/s. BHEL, Kolkata. However, the Respondent, though received and realized the value of taxable services from M/s. BHEL, by rendering the said services, but failed to discharge the service tax on the amount so received. Consequently, on being pointed out by the Department, they had paid the service tax. Later on, a Show Cause Notice was issued to them on 29.08.2008, proposing appropriation of the amount already paid and imposition of penalty, and recovery of interest. The ld. Adjudicating Authority has confirmed the demand and appropriated the amount paid towards service tax liability and imposed penalty of Rs. 7,07,029/ - under Section 78 of the Finance Act, 1994; penalty of Rs. 1,000/ - under Section 77 of the said Act; and penalty @2% of the service tax per month under Section 76 of the Finance Act, 1994.
Aggrieved by the said Order, the Respondent -Assessee had preferred an appeal before the ld. Commissioner (Appeals). The ld. Commissioner (Appeals) dropped the penalty and allowed the appeal filed by the Respondent -Assessee. Aggrieved by the said Order, the Revenue is in appeal before this Forum.

(3.)AT the outset, ld. AR for the Revenue has submitted that the Order of the ld. Commissioner (Appeals) is devoid of any reasoning passed without analysis of the facts, on the basis of which, the penalty had been imposed by the Adjudicating Authority. He submits that judgments referred to by the ld. Commissioner (Appeals), in the cases of KSL Industries vs. CCE, Vapi, : 2009(14) STR 839 (Tri. -Ahmd.) and Santhi Casting Works, : 2009(15) STR 219(T -Chennai), are not applicable to the present circumstances of the case. In the former case, the issue was whether the provisions of Section 73(1A) would be applicable to Sections 76 and 77 of the Finance Act, 1994. Similarly, in Santhi Casting Works case (supra), the issue was that, when an assessee voluntarily pays the service tax amount, whether issuance of a show cause notice be waived under sub -section (1) of Section 73 in respect of the amount so paid.
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