9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2015 (12) TMI 1008 - AT - Service TaxDemand of service tax - Commercial or Industrial Construction/Works Contract service - Held that - It is settled law that while exercising the powers of revision under Section 84 of the act, the Commissioner cannot review or revise the discretionary powers exercised by the original adjudicating authority under Section 80 of the act. He relies upon the decision of the Hon ble High Court of Karnataka in the case of CCE, Bangalore II Vs. Sunitha Shetty 2004 (9) TMI 1 - KARNATAKA HIGH COURT and in the case of CST, Bangalore Vs. Handimann Services Ltd. 2011 (9) TMI 690 - KARNATAKA HIGH COURT and the decision of this Tribunal in the case of Sneha Minerals Vs. CCE, Belgaum 2010 (7) TMI 387 - CESTAT, BANGALORE . After going through the said decisions, I find that in the case of Sneha Minerals, this Tribunal had taken a clear view that a revisionary authority under Section 84 cannot substitute his discretion for that of the original authority. Since the decision of this Tribunal was made by a division bench, the judicial discipline requires that it should be followed. - Decided in favour of assessee.
Issues:
1. Classification of taxable services under different categories leading to underpayment of service tax. 2. Validity of penalty imposed under Section 76 of the Finance Act 1994 by the Commissioner in a revisionary order. Analysis: 1. The case involved the appellants who held service tax registration under the categories of "Commercial or Industrial Construction" and "Works Contract Service." The issue arose when it was discovered that they had paid service tax under the wrong category for certain periods, resulting in underpayment of service tax. The appellants had initially paid tax under "Commercial or Industrial Construction" up to a certain date and then switched to paying tax under "Works Contract Service." This led to a discrepancy in their tax payments, and they were found to have short paid a certain amount along with education cess and secondary & higher education cess. The order-in-original confirmed the demand for the short payment of service tax, but penalty under Sections 76, 77, and 78 of the Finance Act 1994 was waived by the adjudicating authority. 2. The appellants appealed against the decision regarding taxability and the treatment of their activity as "Commercial or Industrial Construction" before the Commissioner (Appeals). The Commissioner, under the powers vested in him by Section 84 of the act, proposed to reverse the order-in-original and issued a show-cause notice to impose a penalty under Section 76 of the act. The issue raised in the appeal was whether the Commissioner had the authority to impose a penalty under Section 76 in a revisionary order. The learned advocate for the appellants argued that the Commissioner, while exercising powers of revision under Section 84, cannot review or revise the discretionary powers exercised by the original adjudicating authority under Section 80 of the act. The advocate relied on various legal precedents, including decisions from the Hon'ble High Court of Karnataka and previous Tribunal judgments, to support this argument. 3. The Tribunal, after considering the legal precedents cited, found that a revisionary authority under Section 84 cannot substitute his discretion for that of the original authority, as established in previous decisions. The Tribunal specifically referenced the decision in the case of Sneha Minerals Vs. CCE, Belgaum, where it was held that the revisionary authority cannot interfere with the discretionary powers exercised by the original adjudicating authority. Therefore, based on the legal principles and precedents cited, the Tribunal allowed the appeal and provided consequential relief to the appellant, setting aside the penalty imposed under Section 76 of the Finance Act 1994 by the Commissioner in the revisionary order.
|
