LAWS(CE)-2009-7-23

JAY GANESH AUTOCARE PVT. LTD. Vs. CCE

Decided On July 10, 2009
Jay Ganesh Autocare Pvt. Ltd. Appellant
V/S
CCE Respondents

JUDGEMENT

(1.) THE appellants have already deposited entire duty of Rs. 4,51,303/ - and vide his impugned order, the Commissioner has remanded the matter to lower authority to re -quantify the demand against the appellants by extending the benefit of Notification No. -ST dt. 10.09.04 as also quantum of penalty imposable upon the appellant in terms of Section 78 of Finance Act, 1994. As such, I find no penalty amount stand quantified vide impugned order of the Commissioner (Appeals), thus requiring dispensation with any pre -deposit of the same. Stay petition is, accordingly, dismissed as infructuous.

(2.) APPELLANT 's grievance is only in respect of penalty. The contention of the learned advocate is that the activity of the appellant rendering the services to the banks/financial institutions on commission basis in relation to the services provided by such financial institutions, was under doubt in the entire trade as to whether they are covered by Business Auxiliary Service or not. The department was approached for seeking clarification, as a result of which the circular was issued on 06.11.06 being Circular No. 87/5/2006/ST clarified that such service provided by the appellant would be covered under the category of Business Auxiliary Service. Learned advocate submits that they have, in fact, deposited the entire service tax before issuance of said circular i.e. in January 2006 itself. However, he submits that in view of the general doubt prevailing in the industry at the relevant time, the benefit of provision of Section 80 should have been extended to them. For the above proposition, he also relies upon Tribunal's decision in case of Car World Autoline v. CCE Cochin as reported in : 2008 (9) STR 246 (Tri -Bang).

(3.) STAY petition as also appeal get disposed off in above terms.