S.S. Kang, Vice President
1. Heard both sides.
2. The appellant filed this appeal against the order in revision passed by Commissioner of Central Excise whereby the penalty imposed under Section 76 and 78 of the Finance Act were enhanced.
3. The contention of the appellant is that they had now paid the Service Tax along with interest. The contention is that the appellant had not paid the tax on due date as they were under the bona fide belief that they are exempted under Notification No. 3/99-ST dated 28.2.99 being a small service provider. The contention is that the matter was entrusted to their CA to defend their case before the Commissioner of Central Excise. However, the CA could not appear before the Commissioner (Appeals), therefore, ex parte order has been passed. The contention is that they were under bona fide belief that they are exempted from payment of Service Tax, therefore, as per the provisions of Section 80 of the Finance Act, they are not liable for any penalty.
4. Heard ld. Jt. CDR. The contention is that the appellant never appeared even before the adjudicating authority. The contention is that as the appellant failed to deposit the tax and failed to file returns on due date, therefore, the penalty was rightly imposed.
5. I find that in this case none appeared on behalf of the appellant before Commissioner of Central Excise. The contention is that the appellant entrusted the matter to their CA who could not appear before the adjudicating authority and now the contention is that they are bona fide belief that they are exempted from payment of Service Tax as a rent-a-cab service provider. In these circumstances, as the amount of Service Tax along with interest has already been paid, I find it is a fit case for re-consideration by the Commissioner of Central Excise regarding enhancement of penalty. The impugned order is set aside and the matter is remanded to the Commissioner of Central Excise to decide afresh after affording an opportunity of hearing to the appellant. The appeal is disposed of by way of remand.
(Dictated & pronounced in open Court)