TMI Blog2018 (12) TMI 1295X X X X Extracts X X X X X X X X Extracts X X X X ..... d in view of the various decisions, no suppression can be alleged merely on audit objections. Appeal allowed - decided in favor of appellant. - ST/25726/2013-DB - Final Order No. 21805/2018 - Dated:- 27-11-2018 - MR. S.S GARG, JUDICIAL MEMBER And MR. P. ANJANI KUMAR, TECHNICAL MEMBER Shri Anil Sood, Advocate For the Appellant Shri K. Murali, Superintendent (AR) For the Respondent ORDER Per: S.S. GARG The present appeal is directed against the impugned order dt. 30/11/2012 passed by the Commissioner of Central Tax, Bangalore whereby the Commissioner has imposed a penalty of ₹ 1,27,80,168/- on the appellant under the provisions of Section 78 of the Finance Act, 1994 read with Rule 15 of CENVAT Credit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cess and utilizing the same for payment of Service Tax on the output services. Hence, with effect from 01.03.2006, the assessee is not eligible to avail the benefit of abatement under the Notification No. 1/2006 dated 01.03.2006. As the assessee has availed abatement for the period from 01.03.2006 to 30.09.2009, the assessee has short paid the Service Tax of ₹ 51,65,268/- on the amount of the abatement claimed. It was observed that the assessee has paid Service Tax of ₹ 2,85,197/- on 24.04.2009 and input tax credit related to specified services and utilized earlier period credit amounting to ₹ 7,67,053/-. Therefore, the assessee has short paid Service Tax of ₹ 41,13,018/- and interest as applicable as per Section 75 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ercent of the amount of Service Tax payable on taxable output services (worksheet enclosed with SCN marked as Annexure B). Therefore the assessee was required to pay the Service Tax of ₹ 85,85,898/- along with applicable interest as per Section 75 of the Finance Act, 1994. On being pointed out, the assessee paid the Service Tax of ₹ 85,85,898/- and interest of ₹ 33,57,964/- vide GAR Challans 12, 13, 14, 18 19 dated 23.08.2010 and 14 dated 24.08.2010. On verification of rent receipts as per accounts and Service Tax payment particulars, it is observed that the assessee has not paid Service Tax on Rent received from Rajuve from 04/2009 to 03/2010. The liability on the same works out to ₹ 43,260/- along with applicable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order imposing the penalty under Section 78 of the Finance Act is not sustainable in law as the same is contrary to the binding judicial precedent. He further submitted that as soon as the audit pointed out the wrong availment of credit, the appellant immediately reversed the CENVAT credit availed by them along with interest. He further submitted that there was no suppression of facts as they have shown the entire credit taken by them in their books of accounts and in the returns filed by them. He further submitted that as per the provisions of Section 73(3) of the Finance Act, once the assessee paid the service tax along with interest, then the Department is precluded from issuing the show-cause notice to the assessee. Thereafter he quote ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e tax, if any, as may be determined by the [Central Excise Officer], but for this sub-section. Explanation 2. - For the removal of doubts, it is hereby declared that no penalty under any of the provisions of this Act or the rules made thereunder shall be imposed in respect of payment of service tax under this sub-section and interest thereon. In support of his contention that no notice needs to be issued under Section 73(3) of the Act, the appellant relied upon the following decisions:- i. CCE ST, LTU, Bangalore Vs. Adecco Flexione Workforce Solutions Ltd. [2012(26) STR 3 (Kar.)] ii. Gupta Coal Field Washeries Ltd. Vs. CST, Nagpur [2013(29) STR 166 (Tri. Mum.)] iii. CST, Bangalore Vs. Master Kleen [2012(25) STR 439 (Ka ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion of facts with intent to evade payment of tax and it was detected only during the audit otherwise it would have gone unnoticed. 6. After considering the submissions of both sides and perusal of records, we find that after the audit raised the objection, the appellant reconciled his accounts and paid the service tax along with interest much before the issuance of the show-cause notice. Assessee has also accepted that the CENVAT credit was wrongly taken on account of clerical mistakes committed by the officers who were handling Service Tax matters and the Finance Manager of the unit who was handling the service tax matter had also resigned. Further we find that in view of the various decisions relied upon by the appellant cited supra ..... X X X X Extracts X X X X X X X X Extracts X X X X
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