M/S. JIVANT ENTERPRISE Vs. CST, AHMEDABAD

JUDGEMENT

(1.) THIS appeal is directed against the Order -in -Appeal No. 286/2010(STC)/MM/Commr(A)/Ahd dated 15th September, 2010. On careful consideration of the submissions made by both sides and perusal of appeal papers, I find that in this appeal the Appellant is charged with non -payment of service tax liability under the category of Management, Maintenance and Repair Services, for the material period 1st April, 2004 to 31st March, 2007. The demand is raised on the basis of inspection of documents which were called for from the Assessee. The Appellant before issuance of Show Cause Notice has paid the entire amount of service tax liability, interest and 25 per cent of the penalty imposed under Section 78 of the Finance Act, 1994, within 30 days of the issuance of the adjudication order. Assessee was aggrieved by the adjudication order for imposition of penalty under Section 76 and hence took the matter in appeal. The first Appellate Authority also did not agree with the contentions raised by the Appellant for imposition of penalty under Section 76 and confirmed the order of the Adjudicating Authority and hence, this appeal.

(2.) LEARNED Chartered Accountants entire submission is that the provisions of Section 78 was amended from 10th May, 2008, wherein an amendment is brought in indicating that, where penalties payable under Section 78, no penalty under the provisions of Section 76 shall be attracted. It is his submission that the Show Cause Notice to the Appellant was issued on 18th June, 2008 i.e. almost after a month of the amendment carried out to Section 78. It is his submission that by virtue of this amendment, if the Show Cause Notice is issued post amendment and as per the statute, no penalty is payable under Section 76. He would rely upon the judgment of the Hon'ble High Court of Karnataka in the case of CCE vs. Motor World - -, 2012 -TIOL -418 -HC -KAR -ST and also in the case of First Flight Courier Limited : 2011 (22) STR 622 (P&H) and again in the case of United Communication Udupi, 2011 -TIOL -802 -HC -KAR -ST, for this proposition. It is also his submission that the Tribunal decision in the case of West Minister International P. Limited, (2007) 11 STT 157 (New Delhi -CEGAT) would indicate that penalty can be imposed only under the provisions, which are in existence at the time of issuance of Show Cause Notice.

(3.) I have considered the submissions made by both sides and perused the record.