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2016 (3) TMI 852 - AT - Service TaxImposition of penalties under Section 78 & 77(1a) and 77(2) of the Finance Act, 1994 - Taxable services of 'Erection, Commissioning or Installation' service received from outside India - No intention of assessee for non-payment of service tax as when pointed out that there was liability on them to pay service tax for the above services, they immediately made the payment along with interest - Held that :- the provisions of Section 73(3) of the Finance Act, 1994 say that when the liability of tax has been paid by an assessee before service of notice on him under Section 73(1) and when the said assessee has informed the department of such payment in writing, the Department was not to serve any notice under Section 73(1). However it is right that Section 73(4) also makes it clear that wherever there has been such non-payment by reason of fraud, or collusion or willful misstatement or suppression of facts or contravention of any of the provisions of this Chapter or of the rules made thereunder with intent to evade payment of service tax, an assessee cannot take the benefit of provisions of Section 73(3) of Finance Act 1994. But the Department has completely failed to prove the same. Also it was entitled to take CENVAT credit for payment of service tax, therefore, the intention to evade payment of service tax do not arise and the penalties imposed are set aside. - Decided in favour of assessee
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