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2023 (8) TMI 124 - AT - Service TaxWrongful (amount) payment of service tax - part amount do not pertain to any service rendered - amounts are not reflected either in the invoices or in the books of accounts under relevant Heads and the appellants did not provide any proof like invoice etc. to show that those payments were for the purposes cited - conditions laid down in the N/N. 12/2003 not satisfied - extended period of limitation - HELD THAT:- A simple perusal of the Notification would indicate that the exemption contained therein is applicable subject to condition that there is documentary proof specifically indicating the value of the said goods and materials. The documentary proof could be in any form such as invoices, debit/ credit notes, books of accounts etc. - it is found that the appellants did not produce any evidence to that effect, either before the original adjudicating authority or before appellate authority. Payment of service tax payable within one month of the issuance of OIO - HELD THAT:- The appellants claim to have paid only Rs.1,88,220/- out of total demand of Rs.4,46,078/- along with interest and 25% of the penalty. We find that in terms of Section 73 (3) of the Finance Act, 1994, the appellants are required to pay the service tax confirmed along with interest and 25% of the penalty; it is not open to the appellant to pay a portion of the demand that they think is payable and claim the benefit of the provision of law. Therefore, the appellants cannot take shelter under the provisions of Section 73 (3) of the Finance Act, 1994. Extended period of limitation - suppression of material facts or not - HELD THAT:- Suppression by itself may not indicate any intent. However, suppression coupled with the appellant’s failure to disclose the amounts collected in the ST-3 returns; failure to deposit the applicable service tax, which they are not disputing, leads to the inevitable conclusion that the intent, to evade payment of service tax, is presentin this case considering the facts and circumstances - the extended period is rightly invoked. Levy of penalties - HELD THAT:- The interest of justice will be more than met if penalty under Section 78 is imposed - penalty imposed under Sections 76 and 77 are being set aside. The appeal is partly allowed by upholding the confirmation of duty, interest and penalty under Section 78; penalties under Sections 76 & 77 are, however, set aside.
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