2010 (12) TMI 121

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....nbsp;                                  Per Rakesh Kumar The facts leading to filing of this appeal by Revenue and cross objection by the respondent are, in brief, are under:- 1.1 The respondents were having their godown atG.T. Road, Village Ghal Kalan, Moga. In this godown, the goods of M/s. Nestle India Ltd. were being stored for which the respondents were receiving certain remuneration. On 10.08.2006 a show cause notice was issued to the respondent alleging that they were providing storage and warehousing facility to M/s. Nestle India Ltd. and since storage and warehousing serv....

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....x parte order dated 30.04.2008 imposing penalty of Rs.54,750/- on the Respondent. Here it may be mentioned that no appeal was filed by the respondent against the earlier order dated 13.11.2006. But the respondent filed appeal against rectification order dated 29.04.2008 before the CCE (Appeals).  Though before the Commissioner (Appeals) it was pleaded that the services provided by the respondent were not the services of storage and warehousing and that there is no ground for imposition of penalty and that they  had infact rented the godown to Nestle India Limited and that during the period of dispute, the service of renting of immovable property was not even taxable, the Commissioner (Appeals) vide order-in-appeal dated 20.10.2008....

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....d as such the respondent fall under the category of small service provider and hence no tax is chargeable, that from the order of Dy. Commissioner, it is clear that department has accepted the respondents contention that they were providing the services of renting of immovable property during the period from 1.10.2007 to 31.10.2008, that in view of this, for the period from 16.08.2002 to December, 2005, the same services cannot be treated at the services of storage and warehousing, more so, when a rent agreement of the respondent with Nestle India Limited has been produced and that when the service tax itself was not chargeable, there is no question of imposing penalty on the respondent under Section 78 of the Finance Act, 1994. 2. Heard....

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....it and hence, no service tax was payable but in this order the Department  has accepted that the services provided by the respondents were  the services of renting and not the services of storage and warehousing and that in view of this, for the previous period, from 16.06.2002 to December, 2005, the services cannot be treated as the services of storage and warehousing. He, therefore, pleaded that there is no ground for imposition of penalty under Section 76. 3. I have carefully considered the submissions from both the sides and perused the records. I find that in the course of filing of the appeal before the Commissioner (Appeals), it has been pleaded by them that they had not provided any storage and warehousing services&nbsp....