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2019 (2) TMI 1107 - AT - Service TaxPenalty u/s 78 - Tax collected but not paid - appellant had collected brokerage charges and transaction charges during the period from 1st April, 2007 to December, 2011 from their customers, but not paid - Held that:- It is clear that whenever the element as that of fraud, collusion, willful mis-statement or suppression of fact is apparent on the part of the appellant as a ground for non-payment of the service tax that the appellant is liable to be imposed with the penalties under this section. The appellant herein has taken the ground of bonafide impression for not being liable to pay the service tax on the transaction charges. Though the Department’s case is that the alleged non-payment came to the notice of Department only on audit of records of the appellant by the Department. But there has been catena of decisions that mere non-payment may not suffice to be clothed with the grave allegations as that of fraud and mis-representation unless and until there is evidence about a positive act on part of appellant, as produced by Department, to prove that appellant had intent to not to pay the duty. The apparent fact of the appeal is that the appellant has not contested the liability and in fact has prayed for his sufficient cenvat credit available to be utilized against the said demand - The transaction charges were subjected to levy of tax for the first time w.e.f 16-05-2008 without any intention to amend the "forward contract service" already existing at that time. Further, the CBEC vide Letter F. No. 137/57/2006-CX-4 Dated: May 18, 2007 also issued instruction on transaction charges stating that the same is not liable to Service Tax. Penalty not imposable - appeal allowed - decided in favor of appellant.
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