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2011 (8) TMI 413 - AT - Service TaxCommissions paid to their foreign agents in the year 2005-06 and 2006-07 - omitted to pay Education Cess - adjusted - There is no evidence or he has no documents to show whether Education Cess was paid subsequently or whether excess payment was adjusted subsequently etc - there was no liability at all for the year 2005-06 in respect of service tax in view of the settled law that the service tax need not be paid in respect of services received from abroad prior to 18.04.06. Under these circumstances, appellants have not only paid service tax during the year but also paid in excess - whatever amount appellant paid towards service tax, the same as cenvat credit was available and therefore there was no reason for them to evade any service tax - The very fact that they paid excess amount after booking the expenditure also shows that appellants were aware of this position and therefore made the payment of service tax. Apparently non payment of Education Cess is a bonafide omission and done without any intention to evade duty - the stay petition is allowed and the matter is remanded to the original adjudicating authority for fresh decision.
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