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2018 (8) TMI 176 - AT - Service TaxMaintenance and repair services - Point of Taxation Rules - payment of tax with Interest made on being pointed out - Invocation of extended period of limitation - penalty - Held that:- Admittedly, appellant company had expressed its ignorance about change of procedure concerning Point of Taxation Rules, with effect from 01.04.2011 and made delayed payment of service tax upon its receipt and not on the basis of dates on which invoices were raised by it - because of long practice prevailing since introduction of service tax, it was just carrying forward the process and there was no ill intention that can be attributed to evade tax since all the tax liabilities were addressed with due payment of interest after the same being identified by way of audit. The explanation 2 has been inserted to sub-rule 3 of Rule 73 with effect from 08.05.2010 and sub-rule 4 has all along been existing since implementation of Finance Act, 1994. Therefore, there is no need to venture into such debate that explanation 2 providing non-imposition of penalty under any of the provisions of Act and Rule on fulfilment of requirement of sub-rule(3) would have application to subrule 4 since sub-rule 4 starts with an non-obstinate clause “nothing contained in sub-rule 3 shall apply” to a case where service tax has not been levied or paid or short levied or short paid or erroneously refunded by reason of those five grounds mentioned above under proviso to subrule (1) of Rule 73. In view of the fact that parameters of proviso to Section 73 and ingredients constituting suppression of fact by the appellant has not been made out and the same had not been established by the respondent department before the authorities adjudicating the matter, it can safely be concluded that Section 4 would have no application to the case of the appellant attracting penalty, in which case explanation 2 to sub-section (3) of Section 73 will have its effect - appeal allowed - decided in favor of appellant.
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