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2018 (7) TMI 1288 - CESTAT KOLKATAPenalty u/s 70 of the Finance Act, 1994 - non-quantification of actual interest under Section 75 of the Act - transport for goods services by road - reverse charge mechanism - Whether the service can be categorized under the head GTA Services or not? - Held that:- This amount has been certified by the Chartered Accountant. Under such circumstances, the services rendered cannot be categorised as GTA service as has been held in the case of SOUTH EASTERN COAL FIELDS LTD. VERSUS C.C.E., RAIPUR [2016 (8) TMI 677 - CESTAT NEW DELHI] - there is no liability on the part of the appellant for the payment of Service tax on this account under RCM - the interest goes alongwith the amount of tax payable in case any amount is still remained to be paid, appropriate interest shall be payable by the appellant as per the provisions of Section 75 of the Act. Penalty u/r 76 of FA - Held that:- Section 76 and 78 are mutually exclusive - This is as per the amendment carried out under the 5th proviso of Section 78 through Finance Act, 2008 this has also been made applicable to the old cases also - penalty u/s 76 not warranted and is set aside. Payment of amount of Maintenance and Repair service - Held that:- As far as the demand under this heading for services rendered by them is concerned, the appellant has not contested the demand confirmed and agreed to pay the same as they had been paying the service tax under this Head. Shifting charge will be treated under Cargo Handling Service - Held that:- The Cargo Handling services does not come under the category of Reverse Charge Mechanism and therefore, the service tax required to be paid by the provider of the service nor the recipient thereof - In this case the appellant is not provider of the services and therefore the demand on this account is not sustainable and is set aside. Commission paid to the foreign agent - Held that:- The contract was signed on 1/4/2006 and negotiation with the buyer was completed on 6/4/2006 as is evident from the copies of the contract - As held in the case of International Shipping Owners Association Vs. Union of India [2008 (12) TMI 41 - BOMBAY HIGH COURT], the service tax is not payable before 18/4/2006 i.e. the date of insertion of Section 66A in the Finance Act, 1994 - demand set aside. Appeal dismissed - decided against Revenue.
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