ORDER
M.V. Ravindran, Member (J)
1. This appeal is directed against the order in appeal dated 10.5.06.
2. The issue involved in this case is regarding the service tax liability on the appellants in respect of the services provided by them as On Line information as Data base Access and retrieval services. The appellants had obtained registration as provider of this particular services in October, 2001. They were filing the service tax returns and paying the service tax on the amount collected from the customers in respect of their services. It was noticed by the revenue that the appellants had not paid the service tax on the one time charges which were recovered by the appellants from the customers. On being pointed out by the Revenue, the appellants discharged the entire service tax liability on 14.1.04 and also discharged interest liability for such tax on 24.3.2004. Revenue issued show cause notice to the appellants on 5.5.2005 for appropriation of the amount and also for imposition of penalty. The adjudicating authority confirmed the same, appropriated the amount paid by the appellants and imposed penalties on the appellants under the provisions of Section 76 and 78 of the Finance Act, 1994. On an appeal, the Commissioner (Appeals) also concurred with the findings of the adjudicating authority.
3. The authorized representative appearing on behalf of the appellant submits that they are not challenging the service tax liability and the interest liability. It is their submission that their challenge is towards the imposition of penalties. He submits that, having paid the service tax liability and interest before 30.10.04, they were covered by extra ordinary friendly scheme of service tax as introduced by the Government of India. He relied upon the decision of the Tribunal in the case of CCE, Bhopal v. Bharat Security Services and Amit Kumar v. CCE Jaipur-II 2006 (2) STR 506.
4. The learned SDR on the other hand submits that the appellant is liable to pay service tax when he collected the amount as one time charges. Having failed to do so, he is correctly penalized under the provisions of Finance Act. It is also his submission that extra ordinary friendly scheme would not apply in this case as the appellant was already registered with the service tax authorities and should have known their responsibility as regards the payment of service tax on the amount collected by him.
5. Considered the submissions made by both the sides and perused the record. The appellant has not appealed against the service tax liability or the interest thereof, hence that part of impugned order is upheld. It is their submission that they are against imposition of penalty under Sections 76 and 78. I find that the issue is squarely covered by the decision of the Tribunal in the case of CCE, Bhopal v. Bharat Security Services & Worker’s Const. and Amit Kumar Maheshwari v. CCE Jaipur-II v. CCE 2006 (2) STR 506 (Tri-Del). As in the current appeal before me, the appellants had discharged the duty liability and interest thereon on 14.1.04 and 23.2.04, I may read the order of the Tribunal in the case of Bharat Security Services and Worker’s Const:
Revenue filed these appeals against the orders in appeal whereby the penalties imposed on the respondents were set aside as the respondents paid service tax alongwith interest prior to 23.9.04. The Commissioner (Appeals) in the impugned order held that a Voluntary Disclosure Schemes known as Extra Ordinary Tax Payer Friendly Scheme was circulated vide letter dated 23.9.04. Under this scheme, any service provider who got registered upto 30.10.2004 are not liable for any penal action. The Commissioner (Appeals) held that in view of the immunity from penal action under this Extra Ordinary Tax Payer Friendly Scheme, no penalty is imposable on the respondents, as they have paid service tax prior to 30.10.04.
The contention of the Revenue is that the respondents are registered prior to the extra Ordinary Tax Payer Friendly Scheme and not registered this immunity scheme. Therefore, are liable to penal action.
I find that the service provider who registered and paid service tax during Extra Ordinary Tax Payer Friendly Scheme upto 30.10.04, not liable to any penalty. Therefore, I find no infirmity in the finding of the Commissioner (Appeals) that the respondents to pay service tax alongwith the interest prior to 30.10.04 are also not liable for penalty. In view of these circumstances, I find no merit in the appeals. Therefore, all the appeals are dismissed.
6. It can be noticed that the issue in this case is squarely covered in favour of the appellants. Accordingly, respectfully following both the decisions of the Tribunal, the impugned order to the extent it imposes penalty is liable to be set aside and I do so. The appeal is allowed in above terms with consequential relief, if any.
(Order dictated and pronounced in the open Court on 5.12.2006).