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    Appeal No. E/10732/2017 (Arising out of OIO No. BHR-EXCUS-000-COM-096-15-16 dated 31.03.2016 passed by Commissioner of Customs and Service Tax, Bharuch) and Order No. A/13653/2017

    Decided On, 17 November 2017

    At, Customs Excise Service Tax Appellate Tribunal West Zonal Bench At Ahmedabad

    By, THE HONORABLE JUSTICE: ASHOK JINDAL
    By, MEMBER

    For Petitioner: S.J. Vyas, Advocate And For Respondents: L. Patra, AR



Judgment Text


1. The appellant is in appeal against the impugned order for seeking certain relief on merits as per the impugned order.

2. The brief facts of the case are that the appellant filed declaration under VCES Scheme 2013 wherein declared service tax payable amounting to Rs. 1,43,685/-. Initially the said declaration was accepted. Later on, it was found that the appellant has not correctly declared under VCES Scheme 2013, therefore, the show cause notice was issued to the appellant for the period 2009-2010 to 2012-2013 (up to December, 2012) on 24.12.2014 for demand of service tax amount of Rs. 15,86,845/-. The matter was adjudicated, the demand of service tax was confirmed along with interest and penalty equivalent to service tax was imposed under Section 78 of the Finance Act, 1994. The amount of Rs. 10,000/- was also imposed under Section 77(2) of the Finance Act, 1994 for non registration, further the penalty was also imposed on the appellants under Section 70 of the Finance Act, 1994. The appellant is in appeal on the ground that the demand beyond the period of five years is not sustainable and penalty to the extent of the amount declared in VCES Scheme 2013 is required to be reduced and when the penalty under Section 77(2) for non registration has already been imposed, therefore, no penalty under Section 70 of the Act is imposable for late fees.

3. Heard the parties and considered the submissions.

4. After hearing both sides, I find that the appellant has sought three reliefs against the impugned order:-

(A) The demand for the period beyond the five years is not sustainable. I find that in this case, the show cause notice has been issued on 24.12.2014 for the period 01.04.2009 to December 2012. Admittedly the period from 01.04.2009 to 30.09.2009 is beyond the extended period of limitation, therefore, the demand of service tax for the period 01.04.2009 to 30.09.2009 is set-aside as time barred. Corresponding penalty is also reduced to the extent.

(B) The penalty under Section 78 of the Finance Act, 1994 has been imposed on the appellant equivalent to the amount of service tax is confirmed. Admittedly the appellant has filed declaration on VCES Scheme, 2013 wherein the appellant has declared a sum of Rs. 1,43,685/-. The said amount is also found in the demands as per the show cause notice, therefore, the said amount is required to be reduced from the total demand and the penalty is also modify, therefore, penalty under Section 78 of the Finance Act, 1994 is reduced:-

(c) I find that in the impugned order, the penalty under Section 77(2) of the Act has been imposed for non-registration and further penalty under Section 70 has been imposed for less payment of service tax. Admittedly when the appellant was not registered with the service tax department, the penalty has been imposed if the said penalty has been imposed, therefore, no penalty for the less payment of service tax cannot be imposed on the appellant under Section 77(2) of the Finance Act, 1994. Therefore, penalty imposed under Section 77(2) is set-aside.

5. In result the following order is passed:-

(a) The demand of service tax of Rs. 15,86,845 is reduced by the amount of service tax for the period 0

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1.04.2009 to 30.09.2009 and further reduced by Rs. 1,43,685/- the balance of amount of service tax is payable by the appellant. (b) Penalty under Section 78 of the Finance Act, 1994 is confirmed equivalent to reduced service tax demand. (c) Penalty imposed under Section 77(2) is set-aside. 6. With these terms, appeal is disposed of.
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