BHAROSA COLOUR LAB Vs. CCE

JUDGEMENT

(1.) ALL these 4 appeals are arising out of Order -in -Review issued by the Commissioner of Central Excise, Jaipur which enhanced the penalty imposed under Section 76 of the Finance Act on the appellant.

(2.) THE relevant facts that arise for consideration are that the appellant registered himself as a service provider under the category of photography service provider in 2001. After getting himself registered the appellants did not file return nor did he deposit the service tax. The appellants discharged the service tax liability for the whole period in dispute on their own on 9th May, 2003 and 13th May, 2003 along with interest. Show cause notices were issued on 13th May, and 14th May, 2003 for imposition of penalty on them under Section 76 and 77 of Finance Act, 1994. The said show cause notices were adjudicated by the Asst. Commissioner and he imposed penalty of Rs. 1000/ - each against each show cause notice and also penalties as under: Appeal No. Penalty imposed O.I.O. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 196/05 4500 197/05 8500 198/05 10000 199/05 7500 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - The appellants discharged the penalties imposed on them under Section 76. The Commissioner under the power vested with him under Section 84 of the Finance Act, 1944 reviewed the orders of the Asst. Commissioner and came to the conclusion that the penalty imposable on the appellant under Section 76 should be as under: - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Appeal No. Penalty amount O.I.A. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 196/05 22175 197/05 41640 198/05 50008 199/05 12600 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Hence these appeals.

(3.) LEARNED Advocate appearing for the appellants submits that since the amount of service tax and interest payable thereon was already discharged by them before the issue of show cause notice the case is covered by the decision of the Larger Bench of the Tribunal in the case of CCE, Delhi -III, Gurgaon v. Machine Montell (I) Ltd. as reported at and no penalty can be imposed. Further, he submits that under the Extra -ordinary Tax Payer Friendly Scheme Circular dated 23.9.2004 no penal action should be taken against any assessee who voluntarily paid the service tax and got himself registered up to 30.10.2004. He relies upon the decision in the case of CCE, Bhopal v. Bharat Security Services and Worker's Cont., as reported at 2005 (188) 454 (Tri. -Del). He concedes that the amount of penalty as imposed by the adjudicating authority under Section 76 has attained finality as the appellants have not filed any appeal against it.