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2009 DIGILAW 1597 (PNJ)

Commissioner Of C. Ex. , Jalandhar v. Ess Ess Kay Engg. Co. Ltd.

2009-09-09

JASWANT SINGH, M.M.KUMAR

body2009
Judgment M.M.Kumar, J. 1. The instant appeal filed under Section 35(G) of the Central Excise Act, 1944 read with Section 83 of finance Act, 1994 (for brevity Finance Act) is directed against order dated 13-12-2007 [2008 (10) S.T.R. 430 (Tri.-Del.)] passed by the Customs, Excise and Service Tax Appellate Tribunal, New Delhi (for brevity the Tribunal). 2. The Tribunal has upheld the order passed by the Commissioner (Appeal) setting aside the penalty imposed on the respondent-dealer in pursuance of Section 77 of the Finance Act. The Commissioner (Appeal) has found that there was a reasonable cause for the failure to deposit the amount of Service tax within the time prescribed. It has come on record that the dealer was availing the services of goods transport operators and he was liable to pay Service tax for the period from 16-11-1997 to 2-6-1998. The amount was payable by 13-11-2003. However, dealer could pay the amount of Service tax along with interest only on 29-10-2004. Accordingly, the Assistant Commissioner in its order-in-original imposed penalty by rejecting the plea that there was a reasonable cause for the delay. However, the Commissioner (Appeal) partly allowed the appeal of assessee filed against the order-in-original passed by the Assistant Commissioner. whereby period of payment of interest was modified and order of penalty was set aside by accepting the plea that there was reasonable cause. He has accepted the view that the dealer did not deposit the Service tax earlier under the impression that the recipients of service was under no obligation to pay the Service tax as per the judgment of Honble the Supreme Court in Laghu Udyog Bharti v. Union of India - 2006 (2) S.T.R. 276 (S.C.) = 1999 (112) E.L.T. 365 (S.C.) and that they were not aware of amendment made vide Notification No. 4/2003-S.T. and, therefore, it was found that there was reasonable cause for delay. 3. At the hearing, we asked learned Counsel for the revenue the tax effect, which would be incurred by requiring the dealer-respondent to pay the penalty. The answer was that the tax effect would not be more than Rs. 30,000/-. Taking into account the meager amount involved, we are not inclined to admit the appeal to decide the question of law raised. The answer was that the tax effect would not be more than Rs. 30,000/-. Taking into account the meager amount involved, we are not inclined to admit the appeal to decide the question of law raised. However, it shall not be taken to mean that we have expressed any opinion on the question of law concerning payment of penalty under Section 77 of the Finance Act and the requirements of a reasonable cause under Section 80 of the Finance Act. We leave those questions open and dismiss the appeal on the ground that meager sum is involved.