CESTAT, NEW DELHI BENCH
Commissioner of Central Excise, Ludhiana
V/s.
Kay Bee Alloys & Steel
FINAL ORDER NO. ST/A/109 of 2012-cus.
APPEAL NO. ST/544 OF 2008
FEBRUARY 10, 2012
ORDER
D.N. Panda, Judicial Member – Both the parties agreed that the issue is squarely covered by the Larger Bench decision of the Tribunal in the case of Sri Bhagavathy Tradersv. CCE [2011] 33 STT 1 . Revenue was aggrieved by the first appellate order granting relief to the respondent.
2. When there is no dispute on the liveability on the service tax on the reimbursed expenses to a clearing and forwarding agent, we upheld the adjudication on the levy of tax.
3. So far as the penalties are concerned, we do appreciate that the learned Commissioner has considered waiver but the reasoning for the waiver is not acceptable to us. We make it clear that when there is a levy of tax, liveability of penalty depends on the facts and circumstances of each case. The reimbursement issue has travelled with lot of controversies till conclusions by Larger Bench. Learned Counsel says even the dispute has gone to Apex Court. Appreciating the difficulties faced by the assessee at the infancy stage which is reasonable cause, there shall be no levy of penalty under sections 76 and 78 of the Finance Act, 1994, in the present case. But we confirm penalty levied under section 77 of the said Act, since liability for payment has ensued with obligation for registration arose.
4. Revenue gets partial relief in the manner aforesaid.
