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2019 (1) TMI 779 - CESTAT NEW DELHINon-payment of service tax - freight charges paid to the transporters during the period from 2007-08 and onwards - freight is being paid by their Head office at Howrah, Kolkata - Held that:- All freight charges for transportation of goods from Kolkata to Jaipur by road have been paid by the Head Office of the Company at Kolkata - In view thereof since the freight of the transportation is paid by the Kolkata office naturally in view of the provisions contained in Rule 2(1)(d)(i)(B) of the Service Tax Rules, 1994, the service tax payable on the amount of freight can be paid by the Head Office of the company situated at Kolkata, else it shall amount to double taxation. There is no evidence of centralized registration being produced by the appellant. Also, the documents tendered are insufficient to prove that Kolkata office has discharged the liability of Jaipur office as has also been observed by the adjudicating authorities below. The Chartered Accountant’s Certificate shows much higher an amount of freight charges for Kolkata office only then the amount shown by the appellant qua freight charge of Kolkata as well as Jaipur office. Penalty - Held that:- The appellants certainly, cannot be alleged of committing an act of non payment of service tax by reason of fraud, collusion or any wilful mis-statement or suppression of facts or contravention of any of the provisions of this Chapter or the Rules made thereunder, with intent to evade payment of Service Tax - the appellant were not liable to be imposed with any penalty under any of the provisions contained in the Finance Act, 1994. CENVAT Credit - Held that:- Once there is no proof of payment of service tax by appellant question of entitlement of cenvat credit does not arise at all. Thus, the appellant could not have proved that the liability towards GTA has been discharged. Hence, appellant is held liable to discharge the said liability though the same stands already paid with interest. Hence, the Order is set aside to the extent of confirming penalty - appeal allowed in part.
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