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2016 (6) TMI 20 - AT - Service TaxImposition of penalty - Section 76 & 78 of the Finance Act, 1994 - Business Auxiliary Service - Reverse charge mechanism - Services for Commission Agents when used in respect of exported products were exempt from payment of service tax by virtue of Notification No. 41/2007 dated 06.10.2007 as amended by Notification No. 12/2008 dated 01.04.2008 and subsequently vide Notification No. 18/2009-ST dated 07.07.2009. available as Cenvat credit - Service tax along with interest had been paid before issuance of SCN - Held that:- in the appellant's own case (when it was known as Sterlite Industries (India) Ltd.) reported in [2005 (5) TMI 212 - CESTAT, MUMBAI], the Tribunal has already held that where credit is available to another unit of the same company, the situation was revenue neutral and the allegation of suppression with an intention to evade payment of duty could not have been sustained. Therefore, the allegation of suppression with the intention to evade payment of tax not being sustainable, the Revenue was not justified in contending that the appellant was hit by the bar under Section 73(4). In this view of the matter, the benefit under Section 73(3) ought to have been extended to the appellant and no notice should have been issued to it. Also the entire amount of interest paid by the appellant is a cost to the company in a situation where otherwise there can be no dispute that there was an exemption available from the payment of service tax in respect of Commission Agent services. The appellant was entitled to the benefit of the said exemption had it complied with the procedural requirements. The other argument of the Department that the tax was paid on being pointed out by the Revenue is also no ground for denying the benefit under Section 73(3) as the Section itself envisages that the tax which has been short paid or short levied can be paid by an assessee on its own volition or upon being pointed out by the Department. To suggest that in every case where tax is being paid on being pointed out by the Department, the benefit of Section 73(3) would not be available would tantamount to rendering Section 73(3) redundant, which is clearly impermissible. In view of the above, I hold that benefit of Section 73(3) was available and accordingly set aside the penalty. The appropriation of tax and interest already paid is upheld. - Decided in favour of appellant
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