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2017 (11) TMI 419 - AT - Service TaxPenalty u/s 78 - non-payment of service tax - malafide intent - Held that: - Hon’ble Madras High Court judgment in the case of Vikash J. Shah Vs. Commissioner (Appeals), Coimbatore [2016 (2) TMI 442 - MADRAS HIGH COURT], wherein the Hon’ble High Court has held that there cannot be any liability to pay service tax when the tax is already available in the form of Cenvat. This Tribunal has taken view that when the cenvat credit is available, the non-payment of service tax/duty only creates revenue neutral situation. In this case admittedly there was cenvat of ₹ 19 lakhs available with the appellant therefore to that extent appellant was not required to pay service tax in cash and it was only adjustable against the said cenvat credit. Therefore the penalty of ₹ 19 lakhs i.e. equal to the Cenvat Credit under Section 78 of the Finance Act, is not sustainable - demand of service tax, interest and payment thereof made by the appellant is maintained - appeal allowed in part.
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