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2019 (10) TMI 414 - AT - Service TaxImposition of penalty u/s 77 and 78 of Finance Act. 1994 - non-payment of service tax on SWIFT charges by the Commissioner (Appeals) - HELD THAT:- There is nothing available in the case record to indicate that M/s. SWIFT is a Banking company but as its name appears, it handles transmission of financial and other telecommunication net working for the Banks. The allegation against appellant in the show cause is found to be use of service of transmission of financial and other related messages. In common parlance, “transfer of data” and “transmission of messages” could be different from each other but as SWIFT charges has been held to be taxable in various judgements, judicial precedent dictates that the same principal is to be respected for all times to come unless over-ruled by a larger Bench or Appellate Forum. Taxability on SWIFT charges, which has been accepted by the appellant who also discharged duty liability, is to be excluded from the purview of this discussion - However, having regard to the fact that taxability on SWIFT charges and application of reverse charge mechanism during the relevant period was in hegemony, imposition of penalty by invoking the extended period is beyond the purview of section 78 (4) unless the intention to evade payment of tax on ground of suppression etc. is established - Section 77 penalty is for not reflecting the taxable service in the periodic Returns. The appeal is allowed to the extent of setting aside penalties u/s 77 and 78 of the Finance Act - Appeal allowed in part.
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