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2015 (1) TMI 725 - CESTAT NEW DELHIExemption on commission paid to foreign agent - wilful mis-statement or suppression of facts - Penalty under Sections 76, 77 and 78 - Held that:- It is seen that the appellants were issued two Show Cause Notices, one dated 15.04.209 covering the period 01.04.2008 to 31.01.2009 and the other dated 02.09.2009 covering the period 01.01.2005 to 31.01.2009. The original adjudicating authority confirmed the demands raised in both the Show Cause Notices although as is evident from the period, covered by them, the demand of ₹ 33,560/- raised under Show Cause Notice dated 15.04.2009 was included in the demand of ₹ 5,37,464/- raised in the Show Cause Notice dated 02.09.2009. It is seen that the impugned Order-in-Appeal corrected this mistake and deducted the amount of ₹ 33,560/- from the demand relating to Show Cause Notice dated 02.09.2009. Further, when penalties under Section 76, 77 and 78 were not imposed in respect of the demand pertaining to the Show Cause Notice dated 02.09.2009 (which invoked the extended period under proviso to Section 73 ibid) on the ground that the issue was interpretational, it is difficult to fathom as to how the demand for the extended period can be sustained. As regards the contention of the appellants that whatever service tax is demanded would have been available as credit or they would have been eligible for refund under Notification No. 41/2007-ST, even if not held fully acceptable, does lend support to the appellants contentions that there was no reason for them to indulge in mis-statement or suppression of the facts. - Partial stay granted.
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