3 ORDER The present appeal alongwith stay application has been filed by M/s. Shri Narshibhai Khimjibhai Patel, 311, Toral, Nr. Galaxy Hotel, Jawahar Road, Rajkot-360 001 (hereinafter referred to as the assessee ) against the Order-in-Original No: 15/JC/2011 dated 11.07.2011 (hereinafter referred to as the impugned order ) passed by the Joint Commissioner, Central Excise HQ, Rajkot (hereinafter referred to as the Lower Authority ). 2. Appeal No: 43/EA2/RAJ/2011 has been filed by the Deputy Commissioner, Service Tax Division, Rajkot on behalf of the Commissioner, Central Excise & Customs, Rajkot (hereinafter referred to as the Revenue) in pursuance of the directions issued by the Revenue, against the impugned order passed by Lower Authority in the case of assessee. 3. The audit of the records maintained by the assessee was carried out by the department. During the course of audit it was noticed that the assessee has rendered services under the category of Commercial & Industrial Construction Services to M/s. Kores India Ltd., Wankaer and paid the service tax after claiming abatement under Notification No. 1/2006-ST dated 01.03.2006 but did not include the cost of free material supplied by M/s. Kores and thus not paid the service tax amounting to ` 9,62,599/-. The assessee has also rendered the service to M/s. Paschim Gujarat Vij Companay Ltd. (PGVCL/GEB) during 2004-05 to 2008-09 and not paid the service tax to the tune of ` 6,35,896/- in guise of understanding that PGVCL being government undertaking and thus services provided to them is exempted from payment of service tax. Further the taxable value as per the balance sheet/ receipt ledger is higher than the taxable value shown in their ST-3 returns during the year 2005-06, 2006-07 and 2008-09 and there was a short payment of service tax amounting to ` 17,000/-, ` 8,043/- Page No. 3 of 18
4 and ` 9,928/- total ` 34,971/-. Further the assessee has also provided services to Madhya Pradesh Rural Road Development Authority and Road & Building Department of Government of Gujarat for construction of road and construction of Central & State Food Laboratory at Bhuj which are not taxable as per Notification No. 1/2006-ST dated 01.03.2006 and Board Circular No. 80/10/2004-ST dated 17.09.2004 amounting to ` 1,49,22,846/- ` 97,40,364/- and ` 12,33,218/- during the year 2006-07 to 2008-09. However the assessee has not declared the exempted services in their ST-3 returns. 4. The above observations were culminated into issuance of show cause notice no. V.ST/AR-I,RJT/88/JC/2010 dated 21.04.2010 wherein it was proposed to demand service tax of ` 6,35,896/-, ` 9,62,599/- and ` 34,971/- under Section 73(1)(a) of the Finance Act, 1994 (hereinafter referred to as the Act) alongwith interest under Section 75 of the Act. It was also proposed to impose penalties under Section 76, 77 and 78 of the Act on the assessee. The said show cause notice was adjudicated by the lower authority vide his impugned order dated 11.07.2011. The Lower Authority confirmed the service tax of ` 6,35,896/-, ` 9,62,599/- and ` 34,971/- under Section 73 of the Finance Act, 1994 (hereinafter referred to as the Act) alongwith interest under Section 75 of the Act. The lower authority also appropriated the service tax amount of ` 4,00,358/- against service tax of ` 6,35,896/- and ` 9,62,599/- against service tax of ` 9,62,599/- paid by the assessee. The lower authority also imposed penalties under Section 76, 77 and 78 of the Act upon the assessee. The lower authority also allowed benefit of reduced penalty under section 78 of the Act. 5. Being aggrieved by the impugned order, the assessee filed the present appeal alongwith stay on the common grounds that the they deny the charges of malafide intention to evade the payment of service tax; that the lower authority erred in passing order under Page No. 4 of 18
5 Section 73, 74, 75, 76, 77 & 78 of the Act; that the lower authority admitted that the contract of GEB was for construction of control rooms, staff quarters and other ancillary buildings and he denies the benefit by stating that no separate data was submitted and by not considering the copy of contract; that the lower authority has not considered the benefit of Notification No. 2/2001 dated 27.01.2001 claimed by them; that the lower authority not considered the provisions of sub-rule (1) of the Rule 6 of Service Tax Rules, 1994 wherein it has been mentioned that the service tax liability is to be discharged in the month following the quarter in which payment has been received in the issue of supply of free materials; that they had not received any amount towards service tax from M/s. Kores India Ltd. on the value of free material supplied by M/s. Kores which show that they had no malafide intention to evade payment of duty; that the duty liability of ` 34,971/- calculated by the department was on exclusive basis where as the same was inclusive basis as the condition of the contract was amount inclusive of all taxes; that they paid service tax of ` 1,84,177/- towards service provided to Shree Nemidharmdhurandharoday Amrut Trust which was exempted from service tax; that they also paid excess service tax of ` 29,795/-; that they discharged the service tax liability on the value of free material supplied by M/s. Kores India Ltd even before the same had been received by them; that the lower authority is not justified in passing the order under Section 73, 74, 75, 76, 77 and 78 of the Act. 6. On the other hand, during the course of review of the impugned order, the Commissioner, Customs and Central Excise, Rajkot, (hereinafter referred to as the Revenue) found that the same is not correct, proper and legal as the Lower Authority erred in non imposing proper penalty under Section 76; that the lower authority imposed penalty of rupees two hundred per day and did not mention the provision of two per cent of such tax, per month, whichever is higher ; that the lower authority has failed to observe that the benefit Page No. 5 of 18
6 of reduced penalty @ 25% under Section 78 of the Act is available only if the confirmed amount of service tax, interest and 25% of the penalty amount are paid within 30 days of the communication order and thus the lower authority erred in not imposing proper penalty under Section 78 of the Act. 7. Therefore, the Revenue has authorized the Deputy Commissioner Service Tax Division, Rajkot to file an appeal before this authority. The Deputy Commissioner, Service Tax Division, Rajkot has filed the present departmental appeal on the above grounds. 8. The personal hearing in the matter was granted on 16.11.2011 which was attended by Shri Chirag Parekh, Consultant, Shri Virjibhai Patel, Accountant and Shri Bharatbhai Patel, Partner of the assessee. They gave a written submission alongwith copy of contract and challan. It is their contention that for the construction made for the Kores India duty has already been paid and for the GEB only ` 2,00,000/- balance is to be paid which as per their contention is not liable for payment as GEB is government organization and they reiterate the grounds taken in the grounds of appeal. It is also their contention that even before the payment is received from Kores India, they have made the payment of service tax which has been reimbursed later by the Kores India. It is their contention that no penalty is imposable as they were under bonafide belief and therefore requested for waiver. They also mention that they have only paid service tax on account of construction for trust and they have requested for refund. 9. The assessee filed memorandum of cross objection on 08.11.2011 stating that they have filed appeal alongwith stay and requested for personal hearing. Accordingly, personal hearing in the departmental appeal was granted on 13.12.2011 which was attended by Shri Chirag Parekh, Chartered Accountant and Shri Bharat Patel, Partner of the assessee. It is their contention that ` 4 Lacs has already Page No. 6 of 18
7 been paid for the purpose of calculation of penalty and therefore there is no justification for enhancement of penalty. They also give the written submission. The submission given by the assessee is akin to the grounds of appeal. 10. I have carefully gone through the impugned order, appeal of the assessee and revenue, submission made by the assessee in writing as well as at the time of personal hearing, the grounds of appeal mentioned in the revenue appeal and cross objection filed by the assessee. Since the assessee has paid major service tax amount out of total amount, I dispense with the requirement of the pre-deposit made under Section 35-F of the Central Excise Act, 1944 made applicable to Service Tax matter vide Section 85(5) of the Act and proceed to decide the appeal on merits. I find that the issue to be decided in the present proceedings is whether the impugned order confirming the service tax, interest, penalties and denying the benefit of cum-tax-value as contested by the assessee is proper, legal and correct or otherwise. 11.1.1 I find that the assessee has not disputed the levy of the service tax under Commercial & Industrial Construction Services in any of the three instances i.e. in case of M/s. Kores, M/s. PGVCL and in the case of difference in books of accounts with ST-3 returns. The assessee has rendered services under the category of Commercial & Industrial Construction Services to M/s. Kores India Ltd., Wankaer and paid the service tax after claiming abatement under Notification No. 1/2006-ST dated 01.03.2006 but did not include the cost of free material supplied by M/s. Kores and thus not paid the service tax. After audit, they have paid the service tax in piecemeal. 11.1.2 The assessee has also rendered the service to M/s. Paschim Gujarat Vij Companay Ltd. (PGVCL/GEB) during 2004-05 to 2008-09 for construction of control rooms, staff quarters and other Page No. 7 of 18
8 ancillary buildings at Santalpur and Tithgadh, construction of Tankara sub division officer building and misc. civil work at O&M sub division at Tankara, work of providing paver block, grill work at O&M sub division at Tankara, work of providing culvert, road, cycle stand for sub division office building at Tankara, work relating to providing allu. section & misc. civil work at Morbi city division-1, work of construction of O&M circle office building at Laxminagar, Rajkot, providing exterior paint and powder coating to window frames for new office building at Rajkot, work of providing U.C.R. Maso. in compound wall & batten patti at Circle Building at Rajkot and work of providing metalling work for road work at Laxminagar campus at Rajkot. They have paid the service tax considering the value as cum-tax value on their own calculation. They have requested for cum-tax-value in case of PGVCL based on the terms and conditions of the contract. 11.1.3 The third issue is regarding the taxable value as per the balance sheet/ receipt ledger is higher than the taxable value shown in their ST-3 returns during the year 2005-06, 2006-07 and 2008-09 and there was a short payment of service tax amounting to ` 17,000/-, ` 8,043/- and ` 9,928/- total ` 34,971/-. The assessee has also contested the penalties under various sections imposed upon them. 11.2 I find that the assessee has fully paid the service tax on the consideration received from M/s. Kores India Ltd. which has been appropriated by the lower authority. They further seek the benefit of first proviso to sub-rule (1) of the Rule 6 of the Service Tax Rules, 1994 and contended that they have paid the service tax even without collecting from M/s. Kores. Further they requested that the cost of free material is not to be included while demanding the service tax and relied upon some judgements. On this count, I find that the assessee is paying the service tax by claiming the abatement of 67% on the value of the goods so as to arrive at the taxable value for discharging the service tax. Thus the argument made by the assessee is Page No. 8 of 18
9 of no help to them since this is not the case in which they are paying service tax on the full value. 11.3.1 In the case of work done for PGVCL, they have contested that they are eligible for benefit of Notification No. 2/2001 dated 27.01.2001 issued in case of Central Excise and made applicable to service tax matter. They further rely on the Board Circular F.No. B2/8/2004-TRU dated 10.09.2004. They also stated that as a power reform process, the Electricity Act, 2003 passed by the Central Government and Gujarat Electricity Industry (Re-organization & Regulation) Act, 2003 and a holding company alongwith 6 other subsidiary companies were constituted. The Section 617 of the Companies Act, 1956 defines the Government Company and thus the PGVCL is a government company and thus service provided to them is not taxable. I find that the notification No. 2/2001 is regarding exemption of all goods falling under the first and second schedule to the Central Excise Tariff Act, 1985 donated or purchased out of cash donations, for the relief and rehabilitation of the people affected by the earthquake in the state of Gujarat from the whole of the duty of excise leviable thereon under sub-section (1) of Section 5A of the Central Excise Act, 1944 read with sub-section (3) of Additional Duties of Excise (Goods of Special Importance) Act, 1957 (58 of 1957) subject to certain conditions. However, in the case on hand the matter relating to levy of service tax on construction services provided by the assessee and not relating to exemption of goods donated or purchased out of cash donation. Thus the argument of the assessee is devoid of any merit. The assessee further relied upon the Circular dated 10.09.2004. I find that here the contract was awarded to the assessee by the PGVCL to carry out number of work for a consideration. The PGVCL is a State Government undertaking engaged in distribution of electricity and collecting the charges from the public at large with profit motive. Thus PGVCL cannot be termed as non-commercial organization. Further the services provided by the assessee who is a Page No. 9 of 18
10 commercial concern with profit motive and thus the burden to pay tax is on assessee. Therefore, the said circular has no relevance in the case on hand and argument does not hold any water. 11.3.2 The assessee has asked for cum-duty benefit. However, looking to the specific condition of the contract entered into by the assessee and PGVCL, I find that the amount charged from PGVCL do not include the amount of service tax. Thus I find force in the argument of the assessee. The lower authority has denied the benefit by relying on the single Member Bench s decision in the case of Shakti Motors vs CST 2008(12) STR 710 (AHD-CESTAT). I rely on the decision of Two member bench judgment in case of CCE Patna Vs Advantage Media Consultant, 2008(10) STR 449 (Tri- Kolkata) where in it was held that: Valuation (Service tax)- Cum-tax- Value- Advertising Agency Service- Service Tax not collected for services rendered to government agencies- Remand order of Commissioner (Appeals) to give cum-tax benefit assailed by Revenue-cum-tax-value to be adopted when tax not collected separately- Section 67 of Finance Act,1994 providing for treating gross amount received as inclusive of tax. Valuation (Service tax)-cum-tax-value-service tax is an indirect tax- Tax borne by consumer of goods/services is collected by assessee and remitted to government- Total receipts for rendering services to be treated as inclusive of Service tax due to be paid by ultimate customer unless service tax is paid separately by customersection 67 of Finance Act,1994. The said decision has been maintained by the Hon ble Supreme Court of India as reported in 2009(14) STR J49 (Supreme Court) wherein it has been held that Valuation (Service tax)- Receipts to be taken as cum-tax-value when tax not paid separately by customer 11.4 It is pertinent to note here that the single Member bench delivering the decision in case of Shakti Motors Vs. CST 2008(12) STR 710 (AHD-CESTAT), has reverted it s stand in subsequent case of P. Page No. 10 of 18
11 Jani & Co. Vs CST, Ahmedabad, 2010 (20) STR 701 (Tri-Ahmd.) relying on the Two member bench judgment in case of CCE Patna Vs Advantage Media Consultant, 2008(10) STR 449 (Tri- Kolkata) also maintained by the Hon ble Supreme Court of India. In the facts and the circumstances of the present case, I find merit in the plea of the assessee and in light of the above, I hold that the assessee is eligible for the benefit of cum-tax-value and the total amount charged by the assessee should be considered as cum-tax-value. 11.5 The assessee further stated that the demand of short payment of service tax amounting to ` 34,971/- was due to calculation error. It is the contention of the assessee that the department has worked out the service tax on exclusive basis where as in actual same is to be determined on the inclusive basis. I find that the assessee has not put forth any documentary evidence to prove that the service tax was on inclusive basis. Further they have submitted a work-sheet of three years claiming that the same was on inclusive basis. Mere submission of work-sheet without any concrete evidence is not acceptable. Further the total value of service tax for the consecutive three years can not be termed as inclusive of service tax as they have already collected tax from M/s. Kores India and simultaneously they are also asking for cum-tax-value benefit for the value of service provided to M/s. PGVCL. Thus, they want to avail dual benefit of cumtax which is not permissible. This is nothing but an after thought to counter the discrepancies pointed out by the department. Thus, I find that the assessee is liable to pay the service tax demanded by the department on the basis of difference between books of account and ST-3 returns. The argument of the assessee is devoid of any merits. 12. The assessee further argued that they are not liable to pay interest and penalty under Section 75, 76, 77 and 78 of the Act. However as per the provisions of the Act, the interest is to be charged on the delayed payment as per the provisions of Section 75 of the Act. Page No. 11 of 18
12 The provisions of the Section 75 of the act explicitly states that Every person, liable to pay the tax in accordance with the provisions of section 68 or rules made thereunder, who fails to credit the tax or any part thereof to the account of the Central Government within the period prescribed, shall pay simple interest at such rate not below ten percent and not exceeding thirty six percent per annum, as is for the time being fixed by the Central Government, by notification in the Official Gazette, for the period by which such crediting of the tax or any part thereof is delayed. Thus the argument put forth by the assessee is devoid of any merits. Further in the case on hand the assessee have accepted their liability of service tax and accordingly paid the same, thus, they cannot escape from payment of interest which is flowing from the statute. 13. The lower authority has also imposed penalty under Section 77 of the Act for non filing of returns and for incorrect returns filed by the assessee. I find that the said penalty has rightly been imposed upon the assessee and I uphold the same. 14.1 The assessee has strongly argued that in view of explanation (2) to sub-section (3) of the Section 73 of the Act, they are not liable for any penalty. I find that the assessee has misplaced in relying the explanation (2) of the Section 73(3). In the said section the explanation (1) clearly states about payment of service tax alongwith interest. For better appreciation both the explanations are reproduced below: Explanation 1 -for the removal of doubts, it is hereby declared that the interest under section 75 shall be payable on the amount paid by the person under this subsection and also on the amount of short payment of service tax or erroneously refunded service tax, if any, as may be determined by the Central Excise Officer, but for this sub-section. Explanation 2. For the removal of doubts, it is hereby declared that no penalty under any of the provisions of this Act or the rules made thereunder shall be imposed in respect of payment of service-tax under this sub-section and interest thereon. The explanation (1) clearly states regarding the payment of interest on the amount of short paid service tax determined by the Central Excise officer. Further the explanation (2) also speaks about payment of Page No. 12 of 18
13 service tax and interest thereon which the assessee in this case has not paid till date. The assessee has fully paid the service tax amount in the case of M/s. Kores India Ltd. but not paid interest on it till date. The assessee has paid service tax in the case of PGVCL after considering cum-tax-value that too after issuance of show cause notice but have not paid interest till date. Further in the third instant they have not paid any service tax till date. To get the benefit of act/rules/law the conditions mentioned in it are to be followed strictly. The above explanations specifically speak about payment of service tax alongwith interest which the assessee has not paid till date. The statute is to be read as a whole and not in piecemeal to get the benefit. Further the explanation (2) has been inserted during budget 2010-11. The period covered in the case on hand is prior to that and thus, the said explanation is not relevant. 14.2 The department communicated the non payment/ short payment of service tax to the assessee through audit report. The assessee did not pay the same. The assessee pays partial service tax before issue of show cause notice that too without interest. They paid the some portion after issuance of show cause notice without interest and they have not paid some portion till date. From the material on record, it is clear that the assessee registered themselves as a service provider under the Act as far back in 2004 thereafter they have filed returns regularly. Therefore, they are aware of the liability to pay tax. On the ground that one of the clients did not pay the money due to them they have not remitted any service tax in respect of money which they have not received. When the authorities computed the tax payable with interest and intimated them, they have paid the some amount. However, in order to demonstrate that the reason for non payment of tax was non-receipt of the amount from M/s. Kores India Ltd., they have not produced any material. Therefore, once they have registered themselves, filed returns, aware of the liability under the Act, the returns which they filed did not truly represent the facts Page No. 13 of 18
14 which constituted a wilful mistake. Further in the case on hand the assessee has, till date, not paid the interest and also not paid the service tax amount to the tune of ` 34,971/-. The service tax towards the consideration received from M/s. PGVCL has been paid only after issuance of show cause notice that too without interest. I find that Sub-Section 4 of Section 73 expressly provides the benefit of sub- Section 3 of Section 73 is not attracted to a case falling under sub- Section 4. Therefore, the contention of the assessee that they are not liable to pay penalty by taking the shelter of sub-section 3 of the Section 73 is not sustainable. I rely on the decisions of Hon ble High Court of Andhra Pradesh delivered in the case of M/s United Communications Vs Commissioner of Central Excise, Bangalore reported at 2011-TIOL-802-HC-KAR-SERVICE TAX and M/s World View Vision Vs Commissioner of Central Excise Bangalore reported at 2011- TIOL-801-HC-KAR-ST. They very well know about the Law/Act and Rules. I find that it proves to the effect that they had mens rea to evade payment of tax and came forward to pay the tax only after the audit of the records conducted by the department. As far as the question of extended period is concerned, I rely upon the decision of Hon ble Gujarat High Court in the case of Commissioner of Central Excise Surat-I Vs Neminath Fabrics Pvt. Ltd. (Reported as 2010 (256) ELT 369). The relevant extract of the decision is reproduced below: Termini from which period of one year or five years is computed is relevant date as defined in sub-section (3)(ii) of Section 11A of Central Excise Act, 1944 - Concept of knowledge of departmental authority entirely absent - Importing of said concept in Section 11A(i) ibid or the proviso ibid would tantamount to rewriting statutory provision and rendering defined term relevant date nugatory - Reasoning, that once knowledge acquired by Department there is no suppression, fallacious as once suppression admitted, merely because Department acquires knowledge of irregularities, suppression not obliterated - Impugned Tribunal order introducing novel concept of date of knowledge contrary to provisions of Section 11A ibid, hence quashed and set aside. - Once it is found that the ingredients of the proviso are satisfied, all that has to be seen as to what is the relevant date and as to whether the show cause notice has been served within a period of Page No. 14 of 18
15 five years therefrom. By no stretch of imagination the concept of knowledge can be read into the provisions. [paras 15, 16, 18, 20, 26] 14.3 I also find that Hon ble Supreme Court in the case of Commissioner of Central Excise, Vishakhapatnam Vs M/s. Mehta & Co. reported at 2011-TIOL-17-SC-CX held that Intention to evade - Limitation Show Cause Notice issued within five years from the date of knowledge of the Department is valid: Although, the respondent has pleaded that it was done out of ignorance, but there appears to be an intention to evade excise duty and contravention of the provisions of the Act. Therefore, proviso of Section 11A (i) of the Act would get attracted to the facts and circumstances of the present case. The cause of action, i.e. date of knowledge could be attributed to the department in the year 1997. If the period of limitation of five years is computed from the aforesaid date, the show cause notice having been issued on 15.5.2000, the demand made was clearly within the period of limitation as prescribed, which is five years. My views are further supported by the judgment of Hon ble Supreme Court in case of M/s Rajasthan Spinning and Weaving Mills reported at 2009 (238) ELT 3 (S.C.) and Hon ble High Court of P and H (DB) in case of CCE V/s Haryana Industrial Security Services reported at 2010 (29) STT 444. Therefore the penalty imposed upon the assessee under Section 78 of the Act is sustainable. Further the lower authority has also granted the benefit of reduced penalty of 25% which has not been availed by the assessee. Thus penalty under Section 78 of the Act imposed on them is upheld. 15. As regards to penalty under Section 76 of the Act imposed upon the assessee, I find that the period covered in the show cause notice is from 2004-05 to 2008-09. Further the assessee has not paid certain amount of service tax till date. It is also a fact that they have paid part of the service tax before issuance of show cause notice and some part after issuance of show cause notice. The service tax was paid by the assessee only after detection carried out by the department during the course of audit. It is also undisputed fact the assessee has till date not paid interest. Thus the plea of the assessee that they are covered under the explanation 2 to Section 73(3) of the Page No. 15 of 18
16 Act is misplaced and misconceived by them and devoid of any merits. The penalty under Section 76 is imposable upon the assessee in view of the provisions of Section 78 or otherwise. On this count I find that the said provision came into force w.e.f. 10.05.2008 and the period covered in the present case is from 2004-05 to 2008-09. Thus, the assessee is also liable for penalty under Section 76 of the Act. 16. I find that the department has filed appeal on the grounds that the lower authority has not imposed proper penalty under Section 76 and Section 78 of the Act. I find that the lower authority has mentioned the provision of Section 76 as a penalty of rupees two hundred per day on the assessee, under the provisions of section 76 of the Act, starting with the first day after the due date till the date of actual payment of the service tax, provided that the total amount of penalty payable in terms of this account shall not exceed the service tax payable. However the lower authority failed to mention the clause two per cent of such tax, per month, which ever is higher. Likewise the lower authority has imposed penalty under Section 78 by mentioning that if the service tax determined at Sr. No. (i), (ii) and (iii) is paid alongwith interest within thirty days from the date of communication of this order, the penalty liable to be paid under this section (Sec.78) shall be twenty five percent of the service tax so determined. However, the lower authority failed to mention the wording if the amount of penalty so determined has also been paid within the period of thirty days. This act of the lower authority is against four corners of law and he should have mentioned the proper language as stipulated under the respective Sections. In view of this, the departmental appeal is allowed. 17. In view of the foregoing facts, discussion and findings, I pass the following order: Page No. 16 of 18
17 (i) I uphold the impugned order so far as it relates to (i) levy of service tax, interest and penalties from the assessee in the case of services provided to M/s. Kores India Ltd. and (ii) levy of service tax, interest and penalties on the differential value calculated on the basis of books of account and value of ST-3 returns filed by the assessee. (ii) I hold that the assessee is entitled for cum-tax benefit for the services provided to PGVCL. (iii) Considering the (ii) above, the service tax amount is to be re-worked out and the same is to be communicated to the assessee by the lower authority within fifteen days from the receipt of this order. The same is upheld alongwith interest. (iv) I uphold the penalty imposed under Section 76 of the Act. The amount of penalty is to be re-worked out by the lower authority based on direction issued at para 16 and 17(ii) of this order and the same is to be communicated to the assessee within fifteen days from the receipt of this order. The same is upheld. (v) I also uphold the penalty under Section 77 of the Act imposed by lower authority. (vi) I uphold the penalty under Section 78 of the Act. The amount of penalty is to be re-worked out by the lower authority based on direction issued at para 16 and 17(ii) of this order and the same is to be communicated to the assessee within fifteen days from the receipt of this order. The same is upheld. 18. Barring the modifications mentioned at para 16 and 17 supra, I uphold the impugned order and reject the appeal filed by the assessee. I also allow the appeal filed by the department. Page No. 17 of 18
18 20. The appeals and stay application are decided in above terms. By R.P.A.D. To, (R.B.TIWARI) COMMISSIONER (APPEALS) 1) The Deputy Commissioner, Appellant and Respondent. Service Tax Division, Rajkot. 2) M/s. Shri Narshibhai Khimjibhai Patel, Respondent and Appellant. 311, Toral, Nr. Galaxy Hotel, Jawahar Road, Rajkot-360 001 Copy To: 1) The Chief Commissioner, Central Excise, Ahmedabad. 2) The Commissioner, Customs and Central Excise, Rajkot. 3) The Joint Commissioner, Customs and Central Excise, Rajkot. 4) The Deputy Commissioner, Service Tax Division, Rajkot. 5) The Superintendent, Service Tax, AR-IV, Rajkot. 6) F.No. 46/EA2/RAJ/2011 7) Guard File. Page No. 18 of 18