COMMISSIONER OF CENTRAL EXCISE Vs. R. KUPPUSWAMY

JUDGEMENT

(1.) BOTH the assessee and Revenue have filed appeals against the Order -in -Appeal No. 74/2005 -ST dt. 19.9.2005. Therefore, both are taken up together for disposal.

(2.) THE brief facts of the case are that the appellants were rendering clearing and forwarding service as consignment agent to M/s. Steel Authority of India Ltd. (SAIL). They have not discharged service tax for the period April '99 to March '04 and there was a delay in payment of service tax of Rs. 44,31,640/ - which was subsequently paid by the appellant. The adjudicating authority in his order confirmed the demand and appropriated the amount and also imposed penalty of Rs. 7,43,586/ - under Section 76 and imposed penalty of Rs. 5000/ - under Section 77 for failure to file the returns. The assessees filed appeal against the denial of cum tax benefit and for waiver of penalty under Section 80. On the other hand, Revenue filed appeal against the impugned order against the reduction of penalty imposed under Section 76.

(3.) LD . Advocate submits that service tax liability on consignment agent came into effect from 16.7.1997. Initially, payment of service tax liability was on the service recipient and w.e.f. 1.9.1999, the service tax liability was shifted to service provider. He further submits that there was a confusion on the reimbursement amount of service tax from the service receiver in respect of consignment agents. Therefore, there was delay in payment of service tax. Therefore, they are eligible for waiver of penalty under Section 80. He further submits that they are eligible to cum tax benefit as they have received the gross amount which is inclusive of service tax amount. Commissioner (Appeals) denied the cum tax benefit. He relied on the following citations: - -