CCE, ALLAHABAD Vs. SHRI R.K. SRIVASTAVA

JUDGEMENT

(1.) THE respondent provides taxable service of Rent -a -Cab Scheme Operator service. The Asst. Commissioner vide Order -in -Original dated 29.4.2008 confirmed the demand of service tax of Rs. 62,826/ - against the respondent under Section 73 (2) of Finance Act, 1994 along with interest on this amount as per provisions of Section 75 of the Act. Besides this, he also imposed penalty of Rs. 500/ - under Section 75, Rs. 1000/ - under Section 77; Rs. 62,826/ - under Section 76 and of Rs. 62,826/ - under Section 78 of the Finance Act, 1994. The service tax demand was confirmed and penalties were imposed on the ground that during the period October, 2000 to September, 2005, the respondent was providing the taxable service to various clients without obtaining registration and without payment of service tax and without observing other formalities. On appeal, the Commissioner (Appeals) vide impugned Order -in -Appeal dated 6.2.2009, while upholding the penalty under Section 78 set aside the penalty imposed under Section 76 on the ground that the penalties under Section 76 and 78 cannot be imposed together. He also remanded the matter for recalculation of service tax demand to the Asst. Commissioner as per direction in his order. The department has filed this appeal against the order of the Commissioner (Appeals) challenging the setting aside the penalty under Section 76.

(2.) NONE appeared for on behalf of the respondent, though notice had been issued to them which has been returned back undelivered. In view of this, there is no point for waiting any further for the respondent to appear for personal hearing.

(3.) HEARD the learned D.R. who pleaded that the impugned order is not correct in view of Honble Kerala High Courts judgment in case of Asst. Commissioner of Central Excise vs. Krishna Poduval, reported in 2006 (1) STR 185 (Ker.)