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2018 (7) TMI 785 - AT - Service TaxBenefit of N/N. 15/2004-ST - inclusion of value of free supplies used in providing the output Services - The case of the department is that the appellant have misused the benefit of N/N. 15/2004-ST by not including the value of free supplies used in providing the output Services - CENVAT Credit availed - Held that:- Before availing the CENVAT Credit the issue was remained in their favour in terms of larger bench judgment in the case of Bhayana Builders [2013 (9) TMI 294 - CESTAT NEW DELHI (LB)], however, the appellant had availed the CENVAT Credit paid on the Service Tax, since availed the CENVAT Credit even though the judgment of Bhayana Builders was in their favour on the point of inclusion of free supply material. But since they availed the credit they were no longer entitled for the exemption N/N. 15/2004-ST. Penalty - Held that:- There is no question of any malafide intention on the part of the Appellant. Hence, penalties imposed under Section 76 and 78 are clearly not sustainable in terms of Section 80 of the finance Act, 1994 - penalties set aside. Appeal allowed in part.
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