The High Court · 2025

M/s.Andhra Bank Credit Card Division, Andhra Bank Building, 2nd Floor, Koti, Rep. by its Assistant General Manager, Mr. D.Kishan Prasad ...APPELLANT/APPELLANT AND The Commissioner of Customs and Central Excise, Basheerbagh, Hyderabad - 500 004. ...RESPONDENT/RESPONDENT Appeal under section 35(G) of the Central Excise Act, 1944 against the Appeal no.5T/5512006, Final Order No.1047109 dated 12-08-2009 on the file of the Customs, Excise & Service Tax Appellate Tribunal. South Zone Bench, FKCCI - WTC Building, K.G.Road, Bangalore-560 009, preferred against the Order in Appeal No. 33/2005 (H-ll) S. Tax, dated 30.12.2005 on the file of the Commissioner of Service Tax, Hyderabad-ll, Commissionerate, Preferred agarnst the Order in Original No. 90 of 2004-05 dated '16-03-2005 on the file of the Assistant Commissioner, Servrce Tax, Hyderabad-ll, Commissionerate. l.A. NO: 1 OF 2009( CEAMP. NO: 1'17 OF 2009) Petition under Section 35(G) of the Central Excise Act, R/w 151 of C.P.C praying that in the circumstances stated rn the affidavlt filed in support of the petition, the High Court may be pleased suspend final order No. 1047/09, dated 12-8-2009 made in Appeal No. 5T/55/2006, on the file of the Central Excise and Service Tax Appellate Tribunal, South Zonal Bench, Bangalore, pending disposal of the Central Excise Appeal. Counsel for the Appellant: Mr. B. Srinivas Rao Counsel for the Respondent: Ms. Pravalika, Junior Standing Counsel representing Mr. Dominic Fernandes (Senior Standing Counsel for CBIC) The Court delivered the following: JUDGMENT THE HON'B LE SRI JU STICE P.SAM KOSHY AND THE I{ON'B LE SRI JUSTI CE NARSI NG RAO NANDIKONDA CENTRAL EXCISE APPEA L No.64 of 2009 JUDG MENT: (per the Hon'ble Sri Jusrice P' Sum Koshy) Heard Mr.B.Srinivas l{ao, learned counsel lor the appellant and Ms.Pravalika, learned Junior Standing counsel representing Mr'Dominic Fernandes, leamed Senior Standing Counsel for Central Board of Indirect Taxes & Customs for respondent' Perused the material available on record.

2. 'the instant appeal under Section 3 5(G) of the Central Excisc Appeal Act, 1994 has been f-rled by the appellant assailing the order dated 12.08.2009 passed in S.T'No'55/2006 by the Central Excise and Service Tax Appellate Tribunal.

3. Vide the impugned order' the appeal of the assessee was partly allowed to the extent of the imposition of penalty under Section 76 of the Finance AcI 1994,was set aside and the penalty imposed under Section 78 of the Act was affirmed that which was imposed in Order in Original dated 16.03.2005 and it was conllrmed in the appeal belore the Commissioner vide order dated 30'12'2005' ,/- J/' 2 4' The instant appeal has been fired onry questioning the imposition of penalty under Section 7g of the Act. 5. 1'oday, w.hen the rnatter is taken up for hearing. learned counsel for the appellant heaviry relied upon the fult bench decision of the GESTAT itself i.e., in the case of Standard Charteretl Bank v. CST, Mumbai IService Tax antl botch of appealst . The penalty imposed was on the non-payment of the service tax for the services rendered on the Debit Card, Credit Card or other payment Card Service, to the custorners of the bank' upon their nraking purchases fiorn the merchantire estabrishments. 6. So lar as the irnposition of the service tax is concemed, the appellants are not questioning the sarne in the instant appeal as they have been denied the said permission to chalienge the same by the corrmittee of dispute' consideri'g the fact that the appe,ant was arso a pubric sector bank.

7. Nonetheless, the learned counsel for the appellant contended that thc issue so far as the demand of service tax is concemed. the default on which the penalty has been imposed, the said issue itself stands squar.ely , 20 I 5 SCC CESI'AI' 3 88} .- 3 covered by the aforementioned judgment of the larger Bench of the CESTAT, in the case of Standard chartered Bonk supra and since the issue so lar as the demand ofservice tax itselfstands allowed by the larger bcnch of the CESTAT itself, though the demand of service tax is not under challenge, but the imposition of penalty imposed on the default of rnaking the said service tax also would be squarely covered by the said judgment and the imposition of the tax by the originat authority as also the alfirmation of the same by the subsequent two appeals' deservcs to be interdicted with.

8. [t has also been informed by the learned counsel for the appellant which has not been disputed by the learned counsel for the respondenVdepartment that similar issues have been taken up by almost allthe benches of the CESTAT, except in the case of the appellant herein' For this reason also, the impugned order deserves to be interdicted with'

9. Having considered the contentions put forth on either side' the factual n.ratrix and the contentions put forth by the appellant is not in dispute in the light of the decision so rendered in a large number of banking industries by the various benches of CESTAT' inctuding a larger bench decision which has also been referred herein above ie'' in the case of 4 standord Chortered Bonk supra.If that be the admitred factual matrix of the case, the imposition of penalty under Section 7t3, particularly for a period prior to 2006 when the provision stood amendecr under J..inance Act 2006, in the opinion ol, this Bench, would not be sustainable as the disputed period in the instanr case is 16.07.2002 rill il. lO.2OO4. I0' For aI the aforementioned reasons, we are incrined to alrow the appeal to the extent of the imposition of penarty under Section 7g of the Finance Act upon the appellant bank with a consequence to follow. It is made it clear that the instant appeal stands allowed only so f_ar as thc demand of penaity under Section 7g of the Act is concerned. There is no observation made so far as the payment of service tax alrcady made by the appellants moreovcr which is not in dispute in the instant appeal. As a sequel. miscelianeous petltions pending if any, shall st closed. No costs. //TRUE COPYII SD/-K.SRINIVASA RAO JOINT REGIFTRAR \iw SECTION OFFICER To,

1. The Customs, Excise & Service Tax Appellate Tribunal, South Zone Bench, FKCCI - WTC Building, K G.Road, Bangalore-560 009 2. The Commissioner of Service Tax, Hyderabad-ll, Commissionerate 3. The Assistant Commissroner, Service Tax, Hyderabad-ll, Com m issionerate.

4. One CC to Mr B. Srinivas Rao Advocate [OPUC] 5. One CC to Mr. Dominic Fernandes (Senior Standing Counsel for CBIC) loPUCl 6 Two CD Copies kam/l'SL (Y l I t, HIGH COURT DATED:2810212025 i l JUDGMENT CEA.No.64 of 2009 trE ST4r ( 1 q d o1 liAY z[25 c .oe s ,r4rCH ('c ALLOWING THE APPEAL

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