ROYAL TRAVELS Vs. COMMISSIONER OF C. EX., VADODARA

JUDGEMENT

(1.) LEARNED advocate Shri S.R. Dixit appearing for the appellant submits that service tax of Rs. 84,672/ - stands confirmed against them under the category of rent -a -cab scheme. Learned advocate submits that he was engaged in hiring the cab of another person and using the same for providing services to their clients on per k.m. basis. In any case he submits that the demand of duty stands raised by way of issuance of show cause notice in December 2004 for the period April 2000 to December 2000. He submits that the Commissioner (Appeals) while upholding the confirmation of service tax and imposition of penalty under Section 76 of the Finance Act, has set aside the penalty under Section 78 of the Finance Act by giving a positive finding that there was no intent on the part of the appellant to evade payment of service tax. If that be so, the longer period of limitation cannot be invoked, though he fairly agrees that such plea on limitation was never raised before the Commissioner (Appeals) in as much as the appellant himself was contesting the matter before the authorities. He however submits that the plea of limitation being a legal plea, can always be raised even for the first time before the appellate forum.

(2.) LEARNED DR appearing for the Revenue submits that the penalty under Section 78 was set aside by Commissioner (Appeals) as matter of concession, by taking a lenient view. As such he submits that the tax confirmation be upheld along with upholding of imposition of penalty under Section 76.

(3.) AFTER hearing both the sides, we reproduce the relevant paragraph of Commissioner (Appeals) order. In the subject case, though the show cause notice has charged the appellants with suppression of facts etc. with intent to evade tax, the charge has not been supported by any corroborative evidence. The adjudicating authority also has not given any findings on the basis of which he has concluded that there was suppression of facts on the part of the appellants with intent to evade tax and imposed penalty under Section 78. I, therefore, find that there is no evidence to show that there was any fraud, willful misstatement or suppression of facts, etc., on the part of the appellants with intent to evade payment of duty. In view of the same, the penalty under Section 78 of the Finance Act, 1994 is not sustainable and hereby set aside.