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2018 (8) TMI 1280 - AT - Service TaxPenalty - Short payment of service tax - suppression of facts or not? - demand of differential service tax liability for the period 2004-2005 to 2007-2008 - entire case of the Revenue is that due erroneous method of calculation followed month after month and differential service tax liability remained evaded and is correctly confirmed by the lower authorities by invoking extended period. Held that:- The copy of the audit report filed by the appellant in appeal memorandum clearly indicates that the entire records were made available to the audit party and audit record specifically states that the service tax of audit is of the Branch accounts and they had pointed out same discrepancy of non-payment of tax on foreign exchange remuneration and income received from the Government transactions, syndication fees, etc. These details indicate that the appellant assessee had in fact produced all the records before the authorities to check and come to a conclusion, whether the tax liability was correctly discharged or otherwise. There are strong force and contentions raised by the Learned Counsel that though they have not contested the tax liability before the Adjudicating Authority they had taken the point of limitation for setting aside the penalties so imposed, this is an acceptable point as, if the tax liability itself cannot survive on limitation the question of penalty does not arise - the penalty imposed on the appellant assessee are liable to be set aside; as also on the ground that the appellant assessee has not been able to discharge the tax liability during the period in question due to clerical error is an accepted position, hence this calls for setting aside the penalty of Section 80 of the Finance Act, 1994 invoking the provisions of Section 80 of the Finance Act, 1994. Appeal allowed - decided in favor of appellant.
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