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2015 (11) TMI 844 - HC - Service TaxPenalty u/s 78 - Business Support Services - non payment of service tax - Whether the imposition of penalty was justifiable when a categorical finding has been given that the appellant does not provide any service as provided under section 65 (104c) of the Act and consequently no penalty could be imposable under Section 78 of the Act - Held that:- The necessary ingredients for levy of penalty is where any service tax has not been paid by reason of fraud, collusion, wilful mis-statement, suppression of facts or contravention of any of the provisions of the Act or the Rules made thereunder with the intent to evade payment of service tax. - categorical finding has been given by the Tribunal that the activity carried on by the appellant is a manufacturing activity which cannot be classified as a "business support service" nor can the activity of the appellant could be subjected to service tax under Section 65(104c) read with Section 65(105)(zzzq) of the Act. When no service tax is payable or leviable upon the appellant, the question of penalty or imposition of penalty could not arise. - Decided in favour of assessee.
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