GULABRAO BALIRAM PATIL Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) THE appeal is directed against order -in -appeal No. AKP/144/NSK/2010 dated May 13, 2010 passed by the Commissioner of Central Excise and Customs (Appeals), Nasik. The appellant, M/s. Gulabrao Baliram Patil, Nasik, is registered under service tax category of "management, maintenance or repair service" with effect from October 28, 2004. In addition to the above services, the appellant also rendered services of erection, commissioning or installation, cleaning services and manpower recruitment and supply services to their clients but did not get themselves registered with the Department in respect of these services.

(2.) A show -cause notice was issued to the appellant demanding service tax of Rs. 6,41,163 in respect of taxable services rendered during the period April 2004 to March 2008 under the proviso to section 73(1) of the Finance Act, 1994 along with interest thereon under section 75 and proposing penalties under sections 76, 77 and 78 ibid. The case was adjudicated vide order dated November 30, 2009, wherein a service tax demand of Rs. 1,21,551 was confirmed along with interest thereon. A penalty of Rs. 1,21,551 was imposed under section 76 of the Finance Act, for the default to pay service tax and a penalty of equivalent amount was imposed under section 78 of the Finance Act for suppression and wilful mis -statement of fact with an intention to evade duty. The appellant preferred an appeal before the lower appellate authority, who rejected their appeal and hence, the appellant is before me.

(3.) THEY are not disputing the service tax liability or interest liability but are only disputing imposition of penalties, both under section 76 as well as under section 78. The appellant is a small service provider and, therefore, leniency should have been shown on the appellant and penalty only under one of the section should have been imposed. Secondly, he submits that he has paid the service tax demand along with interest and also 25 per cent of the penalty imposed under section 78 within 30 days of receipt of the impugned order. However, since their stay application was rejected by this Tribunal and the appellant was directed to pre -deposit the entire amount of penalties, he has once again deposited the full amount of penalties and, therefore, the benefit of 25 per cent of the penalty, provided under the proviso to section 78 if the payment is made within 30 days from the date of communication of the order along with service tax and interest due, should be extended to him.