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Service Tax - Case Laws
Showing 21 to 40 of 102 Records
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2015 (4) TMI 1003 - CESTAT NEW DELHI
Manufacturing activity or Packaging Services - appellants, manufacturers of country liquor, were also engaged in the activities of bottling, labelling, affixing the hologram stickers and sealing of glass bottles of country liquor - Held that:- Appellants had been manufacturing and clearing alcoholic beverages. It is also not the Revenue s case that the appellants were only doing packaging activities and the processes prior to packaging were done by someone else. In these circumstances, the appellants are clearly manufacturers of liquor. Indeed manufacturers of any product which involves packaging for clearance are never held to be providing packaging services because while every process of manufacture may not amount to manufacture, Manufacture includes any process incidental or ancillary to the completion of a manufactured product as per Section 2(f) of Central Excise Act, 1944. Thus for a manufacturer of goods, packing them (prior to their clearance) is a process of manufacture and not provision of service. In the case of Maa Sharada Wine Traders (2008 (3) TMI 319 - MADHYA PRADESH HIGH COURT), the M.P. High Court has categorically held that manufacturing process does not necessarily include excisable goods, but also includes process incidental or ancillary to completion of manufactured product. - Following this decision - Decided in favour of assessee.
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2015 (4) TMI 971 - MADRAS HIGH COURT
Waiver of pre-deposit - Out-door catering services - benefit of Notification No.12/2003-ST - Held that:- whether the petitioner is eligible for the benefit of Notification No.12/2003-ST and whether the extended period of time under proviso to Section 73(1) of the Finance Act, 1994 is invokable to the petitioner's case are disputed questions of fact and the same could be raised before the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), as the petitioner has remedy of filing appeal against the order-in-original. This Court is of further view that there is no violation of principles of natural justice in passing the order impugned and the procedures stipulated in Finance Act, 1994 has been thoroughly followed. Thus, the petitioner is bound to pay 7.5% of the total service tax demand of ₹ 63,79,561/- at the time of filing of appeal before the CESTAT. However, it is the case of the petitioner that the levy itself is unwarranted and as such the mandatory payment will cause undue hardship to them. In my considered view, in terms of the provisions of the Act, payment of 7.5% of the total tax demand is mandatory and that cannot be reduced by this Court and further, the petitioner could raise all the points raised before this Court before the CESTAT to substantiate its case. - Decided against assessee.
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2015 (4) TMI 970 - MADRAS HIGH COURT
Demand of service tax - Jurisdiction error - No service provided - Held that:- The authority, after taking note of the submissions of the petitioner, and taking into account the commission received, in para 25 of the order and after verifying the invoices, came to the conclusion that DLF is the customer and the invoices raised by the noticee also confirm that the noticee received commission from the nominees of DLF - Since a finding rendered by the authority cannot be stated that it is a jurisdictional aspect to be interfered by this court and it is based on the facts of the case, the authority has rendered a finding, merely because the petitioner will have to shell out more than 7.5 lakhs, it cannot be a ground to exercise to interfere with under Article 226 of the Constitution of India. Only in rarest of the rare cases, the court will have to interfere with the decision quoted by the petitioner and the relevant portion is reflected in para 8 of the decision of the Apex Court. Since in this case, the decision taken by the respondent cannot be said to be against the provision of law and there is an arbitrary action without sanction of law - Decided against assessee.
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2015 (4) TMI 969 - KERALA HIGH COURT
Availment of wrongful CENVAT Credit - After being informed assessee reversed the credit - Non maintenance of separate books of accounts - whether the petitioner would have to deposit the amount of 7.5% of the tax confirmed against him, as a condition for pursuing the appellate remedy before the Tribunal - Held that:- petitioner, in whose case also the lis commenced in 2013, would not be required to deposit the amount of 7.5%, as required pursuant to the 2014 amendment, and in that respect, he would have an efficacious alternate remedy before the Tribunal where he can file an appeal, together with an application for waiver of pre-deposit and stay of recovery of the amounts confirmed against him by Ext.P6 order. At the time of filing the appeal, he will not be required to make any payment as a pre-condition for the hearing of the waiver application by the Tribunal. I, therefore, relegate the petitioner to the alternate remedy available under the Finance Act, 1994, as amended, of approaching the Appellate Tribunal by way of an appeal against Ext.P6 order. It is made clear that the appeal to be filed by the petitioner would be governed by the statutory provisions, as they stood prior to the amendment introduced with effect from 16.08.2014. - Decided in favour of assessee.
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2015 (4) TMI 968 - KERALA HIGH COURT
Competence of the Controller and Auditor General of India [CAG] / Departmental Audit Committee to look into the accounts of a private assessee - Validity of Rule 5A - Held that:- CAG has a duty to examine and satisfy itself that all the Rules and procedures, in respect of Telecom Service Providers in revenue sharing contracts with the State, are being met by the service providers as a whole. - although in the context of cases involving natural resources, a right was recognized in the CAG to audit the accounts of private persons who were obliged to make payments to the Central Government pursuant to contracts entered into with the Central Government. In the light of the said judgment, I am not inclined to stay the operation of Rule 5A of the Service Tax Rules, for the time being. However, as the petitioners want to have the said issue examined before this Court, the writ petitions are admitted solely for the purposes of examining, in detail, the contentions regarding the validity of Rule 5A of the Service Tax Rules. - prayer of the petitioners to grant a stay of further proceedings, pursuant to the show cause notices issued to them by the respondents, is not granted and the petitioners are relegated to the alternate remedy of pursuing the show cause notices before the authorities under the Finance Act, 1994, as amended. The writ petitions are admitted only for the purpose of examining the issue of validity of Rule 5A of the Service Tax Rules - Decided partly in favour of assessee.
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2015 (4) TMI 967 - PATNA HIGH COURT
Reimbursements of service tax from the recipient of services - terms of the contract agreement - service recipient refused to reimburse by letter dated 21.10.2010 - Held that:- True, it is that the service provider has the right to collect the said tax from the person to whom service is provided but so far as the Excise and Service Tax Department is concerned, it holds the provider of service as liable to pay the service tax. There is no provision in the said Act for recovery or reimbursement of any service tax by the service tax provider from the person to whom the service is provided. Thus, it is the liability of service provider to pay the service tax arising in the course of the provision of service and to provide for its collection in the contract which it enters into with the person who is recipient of the service.
Provisions of Section 64A of the Sale of Goods Act, 1930 cannot be applied to the provision of any service and the liability for tax thereupon as the said provision is specifically confined to the payment of tax in respect to any taxable events in relation to goods and not with regard to services. The taxes, in fact, have been specified as duty of Customs or Excise and any tax on the sale or purchase of goods. The service tax evidently is not upon any contract for sale of goods. It is purely leviable on a contract for provision of service. - More over even in Section 64A of the Sale of Goods Act, 1930 liability of benefit of imposition of new tax or increase or decrease in taxes is subject to there being a different intention appearing from the terms of the contract and the same is not absolute. It is only when the contract is silent on the point that the benefit of liability for increase or decrease on the price of goods on account of such taxes will have to go to the respective party.
Service tax was not leviable at the relevant time on works contract (when the contract was excuted) but the same would also be deemed to have been included in view of the clear provision that the rate should be inclusive of direct or indirect elements. Thus, the said provision can only be interpreted to mean that any future increase or decrease of tax or levy of a new tax with regard to item of the contract would be entirely to the benefit or be the liability of the contractor and the same would not have any effect on the rates and service. There does not appear to be any ambiguity in the said provisions. The provisions, in fact, go further to show that it was the tenderer's duty to get it clarified before submitting the tender and thereafter there would be no scope for any doubt or ambiguity regarding non-inclusion of any ingredient of work in the rate.
Since service tax had become leviable from 1.6.2007, for the period after 1.6.2007 the liability for the same would fall upon the petitioners and it is not open to the petitioners to claim any such refund from the respondent-Board in the absence of any agreement to the contrary or any provision in the Finance Act, 1994 with respect to the same. - Decided against assessee.
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2015 (4) TMI 863 - CESTAT CHENNAI
Waiver of pre deposit - Telecommunication Service - service rendered by the applicant to their customers abroad for which they have paid the amount to the foreign telecom operators - Reverse charge mechanism - Held that:- Following decision of Vodafone Essar Digilink Ltd. Vs. Commissioner of Central Excise, Jaipur [2013 (12) TMI 1016 - CESTAT NEW DELHI] - Stay granted.
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2015 (4) TMI 862 - CESTAT MUMBAI
Waiver of pre deposit - Imposition of penalty - Invocation of section 80 - held that:- appellants have short-paid/evaded service tax, by reasons of fraud, and mis-representation of facts by filing false fabricated ST-3 returns, they are liable for penalty action under Section 78 of the Finance Act, 1994, which provides that the penalty shall not be less than, but which shall not exceed twice, the amount of Service Tax not levied, not paid or short paid. As the period of dispute involved in this case is 16.06.2005 to 31.03.2010 the provisions of Section 78- as it stood before its amendment vide Finance Act, 2011, w.e.f. 08.04.2011- will apply - Appellant directed to make pre deposit - Stay granted.
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2015 (4) TMI 824 - CESTAT AHMEDABAD
Denial of CENVAT Credit - Insurance service - services availed by the appellant from the factory premises to the door steps of the customers - Whether Cenvat Credit of insurance services availed by the appellant from the factory gate till delivery of the goods to the customers premises is admissible or not - Held that:- Appellant is availing insurance services in relation to transport of raw-material plant & machinery and finished goods owned by the appellant. No separate charges on account of transportation of goods, from the factory to the customers premises, have been shown by the Revenue to be recovered from the customers. The fact that transit insurance of the finished goods is borne by the appellant clearly indicates that ownership of the finished goods lies with the appellant till there delivery to the customers premises. In the facts and circumstances of the present appeal, the place of removal shits to the customers premises and Cenvat Credit of insurance services availed in relation to such delivery will be admissible to the appellant as held by this Bench in the case of Priya Industrial Packaging (P) Ltd. Vs. Commissioner of Central Excise Daman (2010 (6) TMI 213 - CESTAT, AHMEDABAD). - Decied in favour of assessee.
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2015 (4) TMI 823 - CESTAT NEW DELHI
Penalty u/s 70& 77 - goods transport agency services - reverse charge mechanism - Held that:- It is admitted fact that on 13.1.12 appellant took registration and paid service tax along with interest, not for the period in question but for 2006 also. This shows the appellant were under the bonafide belief that they are not liable to pay service tax under reverse charge mechanism as good transport agency service does not exceed ₹ 10 lakhs. Therefore, I hold that the show cause notice was not required to be issued under section 73(3) of the Finance Act, 1994. In these circumstances, penalties are not imposable on the appellant. Further, I find that appellant is not contesting the penalty imposed under section 78 of the Act. Therefore the benefit of this order will not be available for the penalty imposed under section 78 of the Act. In these circumstances, the penalties imposed on the appellant under section 70 and 77 are set aside. - Decided in favour of assessee.
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2015 (4) TMI 822 - CESTAT MUMBAI
Business Support Services - appellant is engaged in running a plant for treatment of effluent generated in the industrial area - Held that:- Demand confirmed against the appellant under the category of 'Business Support Services' for operating the effluent treatment plant which has been established under CETP Project, is sustainable in law. We find that the Maharashtra Pollution Control Board in their website has clearly stated that the appellant has been funded by the Central Government as well as the State Government through MPCB for setting up the Butibori CETP Plant. We also find strong contentions as raised by the learned counsel that the retrospective amendment and brought in statute by Section 145 of the Finance Act, 2012 (Act no. 23 of 2012) would squarely cover the issue; as also the rati o laid down by this Bench in the case of Lote Parshuram Environment Protection Co-op Society Ltd. (2013 (1) TMI 141 - CESTAT MUMBAI). - impugned order is not sustainable and liable to be set aside - Decided in favour of assessee.
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2015 (4) TMI 821 - CESTAT AHMEDABAD
CENVAT Credit - Reverse Charge Mechanism - Commission to agents outside India - Held that:- Appellant failed to establish that such commission agent involved in the activity sales promotion, as explained in the decision of the Hon'ble Gujarat High Court [2013 (1) TMI 304 - GUJARAT HIGH COURT]. It is also observed that the appellant only placed the case law in relation to the services rendered, other than the services of commission paid to foreign agent. We find that the appellant in the reply to the show cause notice had taken a definite stand that the foreign agent had rendered the activity of sales promotion - Adjudicating authority should have examined the documents as enclosed with the reply to show cause notice before taking into the decision of the activities of foreign agents - Matter remanded back - Decided in favour of assessee.
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2015 (4) TMI 783 - CESTAT NEW DELHI
Rejection of refund claim - Notification No. 9/09 - Bar of limitation - CHA and scientific and engineering services - Held that:- Tribunal allowed the refund claim holding that section 11 B of the Act, the appellant is entitled to claim the refund of services received in SEZ. I further find that for the subsequent period in appellant's own case refund claim was allowed holding refund claim filed within the time and the services received in SEZ is entitled to claim refund as the service tax has been paid. In view of this observation, I hold that appellant is entitled to refund claim on both the issues relying on the decisions of this Tribunal in the case of Tata Consultancy Service Ltd. (2012 (8) TMI 500 - CESTAT, MUMBAI) - Accordingly, the impugned order is set aside - Decided in favour of assessee.
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2015 (4) TMI 782 - CESTAT CHENNAI
Availment of CENVAT Credit - Input Service Distributor - Availment of credit on invoices pertaining to others - Held that:- Regulatory measure of registration is one of the essential condition for input service distribution to prevent wrongful claim of Cenvat credit by a third party in respect of the invoices issued by the service provider in the name of another Unit of the appellant. Prima facie , no substantial evidence was led by appellant to demonstrate integral connection between the services provided and job working. Similarly, invoices which were used as a basis for claiming Cenvat credit remained in doubt as to multiple claim thereon. Prima facie , when the genuinety of the claim became doubtful, it would not be possible to extend any benefit to the appellant, at this stage, but to direct pre-deposit to protect interest of Revenue. Material fact of invoices without name of the appellant does not rule out abuse of law. Appellant was claiming to be beneficiary of service tax paid by a concern other than the appellant. That crippled the appellant at this stage to advance its claim to Cenvat credit. Therefore, appellant is directed to deposit ₹ 4 crores (Rupees Four Crores only) in three instalments. - Decided against assessee.
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2015 (4) TMI 781 - CESTAT AHMEDABAD
Denial of Refund claim - Exemption claim - services availed by SEZ unit - Non fulfillment of conditions of notification - Notification No. 17/2009 ST dated 07.7.2009 as amended by Notification No. 40/2009 ST dated 30.9.2009 - held that:- Exemption is admissible to the exporters of goods with respect to specified services received and used by the appellant for export of goods. It is observed from the case records that services were received by the SEZ unit of the appellant under invoice dated 30.01.2010 dated 31.12.2009 when the Services for transport of export of goods through national waterways inland water and Coastal Shipping were provided by M/s. Essar Logistics Limited. The said service stand included at Sr. No. 17 of Notification No. 17/2009 ST dated 07.7.2009 as per Notification No. 40/2009 ST dated 30.9.2009. Since the appellant had paid the duty, no reasoning has been given by the first appellate authority as to why refund under Notification No. 17/2009 ST, as amended, will not be admissible. - It is not denied by the Revenue that both the SEZ unit and the DTA unit were Later merged and the appellant therefore, become rightful claimant of the refund of Services availed by the SEZ unit of the appellant. Appellant can not be asked to fulfil the condition of Notification No. 9/2009-ST dated 03.3.2009 which he has not claimed. - Decided in favour of assessee.
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2015 (4) TMI 780 - CESTAT NEW DELHI
Levy of simultaneous penalty u/s 76 & 78 - Packing service - Held that:- With effect from 16.05.2008, penalties under Sections 76 and 78 ibid were made mutually exclusive in-as-much-as if the penalty under Section 78 was imposed, the penalty under Section 76 was made unimposable. This amendment with effect from 16.05.2008 in a way reflected the refinement of penal provisions. Indeed it has been held by Punjab and Haryana High Court in the case of CCE Vs. M/s. Pannu Property Dealers, Ludhiana [2010 (7) TMI 255 - PUNJAB AND HARYANA HIGH COURT] that even if technically, scope of sections 76 and 78 of the Act may be different, as submitted on behalf of the revenue, the fact that penalty has been levied under section 78 could be taken into account for levying or not levying penalty under section 76 of the Act. In such situation, even if reasoning given by the appellate authority that if penalty under section 78 of the Act was imposed, penalty under section 76 of the Act could never be imposed may not be correct, the appellate authority was within its jurisdiction not to levy penalty under section 76 of the Act having regard to the fact that penalty equal to service tax had already been imposed under section 78 of the Act. This thinking was also in consonance with the amendment now incorporated though the said amendment may not have been applicable at the relevant time. Further in the case of CCE Vs. First Flight Courier [2011 (1) TMI 52 - High Court of Punjab and Haryana] Punjab & Haryana High Court held that penalty under Section 76 may not be justified if penalty under Section 78 has been imposed even if technically penalties under both sections could be imposed and that the appellate authority was well within its jurisdiction not to levy penalty under Section 76 having regard to the fact that penalty under Section 78 has been imposed. - Decided against Revenue.
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2015 (4) TMI 746 - CESTAT NEW DELHI
Denial of refund claim - Refund of unutilized CENVAT Credit - nexus with the output services which have been exported - input services of landscaping in their offices - erection of IT cables - setting up of modernization and renovation of premises - Held that:- These services are having nexus to the output services provided to them - as per CBEC circular dated 19.01.2010 appellant are entitled for refund claim which was remained unutilized in their Cenvat Credit account due to export of services - Decision in the case of Tribunal in the case of KPMG Vs. C.C.E. New Delhi [2013 (4) TMI 493 - CESTAT NEW DELHI] and Millipore India Pvt. Ltd (2011 (4) TMI 1122 - KARNATAKA HIGH COURT) followed - Decided in favour of assessee.
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2015 (4) TMI 745 - CESTAT MUMBAI
Refund claim - service tax paid under protest under bonafide belief that service tax is chargeable - concept of mutuality - Co-operative Society - collecting amounts from their members towards maintenance charges, parking charges, NOC Charges, antenna charges, water charges and electricity charges, etc - First appellate authority has decided in favor of assessee - Revenue in appeal before the Apex Court against the decision of Hon'ble High Court of Jharkhand in the case of Ranchi Club Ltd. (2012 (6) TMI 636 - Jharkhand High Court).
Held that:- the appellate authority's order is correct for more than one reasons. Firstly, we find that the first appellate authority has correctly followed the law has been laid down by the Hon'ble High Court of Jharkhand in the case of Ranchi Club Ltd. - secondly the findings recorded by the first appellate authority that there is no mutuality of interest in this case is correct as the respondent is a Co-operative society and the provisions of Maharashtra Co-Operative Act will apply. - Thirdly, we find that the amount which have been collected by the respondent from their members is undisputedly utilised for maintenance and upkeep of the society; property for which all members are charged depending upon the space occupied by the member of the society. - first appellate authority is correct in coming to the conclusion the orders in original need to be set aside and the respondent is eligible for refund of the amounts paid by them "under protest" - Decided against Revenue.
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2015 (4) TMI 744 - CESTAT AHMEDABAD
Discharge of service tax liability by other branch office - whether the service tax payment made by the appellant's Mumbai unit could be considered as due discharge of service tax by the appellant - Penalty u/s 76 & 78 - Held that:- Some excess payment of service tax has been paid by the appellant's Mumbai unit but whether that excess payment was with respect to the appellant's unit at Silvassa is not clear. Appellant has approached their Mumbai Bank branch in September 2014 to either provide a certificate or give them the copies of TR-6/GAR -7 challans/Bank Certificates that during the period 1998-99 to 2004-05 entire service tax also was paid at Mumbai for the Silvassa unit. A copy of one such challan No. 05/2000-2001 has been furnished by the appellant which gives the assessee code number and address of appellants Mumbai office. There is no indication on the challan that this amount is paid with respect to appellant's Silvassa unit. In the absence of any such co-relation, it can not be said that appellant has discharged the service tax liability of Silvassa unit at their Mumbai unit/office. Adjudicating authority has correctly confirmed the service tax liability along with interest.
So far as imposition of penalties under section 76 and 78 of the Finance Act, 1994 are concerned, appellant has claimed the benefit of Section 80 of the Finance Act, 1994 to argue that they were under the reasonable belief that service tax with respect to Silvassa unit has been properly discharged. - appellant had paid some excess amounts with respect to their Silvassa unit. Appellant thus has a reasonable cause to hold that service tax liability of Silvassa unit was discharged in Mumbai. However, due to lack of co-relating documents, it is not possible to establish that the entire service tax liability of Silvassa unit has been discharged. In view of the above, this case is fit for invocation of Section 80 to hold that penalties are not imposable upon the appellant under Section 76 and 78 of the Finance Act, 1994, even if extended period is applicable in these proceedings. - Decided partly in favour of assessee.
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2015 (4) TMI 705 - DELHI HIGH COURT
Transfer of burden to discharge of service tax liability to another person - extended period of limitation - bondafide belief - Sale of space or time for advertisement service to several advertising agencies - Held that:- We do not agree with the views of CESTAT that the service tax liability could not have been transferred by way of a contract. The reliance of DTC on the ruling in Rashtriya Ispat Nigam Limited (2012 (4) TMI 457 - Supreme Court of India) on this score was correct and it appears that the same has not been properly appreciated by CESTAT -
The above ruling of Supreme Court in the case of Rashtriya Ispat Nigam Limited (supra), however, cannot detract from the fact that in terms of the statutory provisions it is the appellant which is to discharge the liability towards the Revenue on account of service tax. Undoubtedly, the service tax burden can be transferred by contractual arrangement to the other party. But, on account of such contractual arrangement, the assessee cannot ask the Revenue to recover the tax dues from a third party or wait for discharge of the liability by the assessee till it has recovered the amount from its contractors. - The fastening of liability on such account by such order on the contractors is, thus, a matter restricted to claims of the appellant against such parties. It would have no bearing insofar as the claim of the Revenue against the appellant for recovery of the tax dues is concerned.
Extended period of limitation - Held that:- Plea of “bona fide belief” is devoid of substance. The appellant is a public sector undertaking and should have been more vigilant in compliance with its statutory obligations. It cannot take cover under the plea that contractors engaged by it having agreed to bear the burden of taxation, there was no need for any further action on its part. For purposes of the taxing statute, the appellant is an assessee, and statutorily bound to not only get itself registered but also submit the requisite returns as per the prescription of law and rules framed thereunder. - Imposition of the service tax liability under Section 73 read with Sections 68 and 95 of Finance Act, 1994 and the levy of interest thereupon in terms of Section 75 of the Finance Act, 1994 cannot be faulted. For the same reasons, the penalties imposed under Sections 76 and 77 of the Finance Act, 1994 also must be upheld.
Levy of penalty u/s 78 - Held that:- It is indeed not the case of the Revenue here that service tax liability was avoided by the appellant with intent to defraud or on account of collusion or willful mis-statement or suppression of facts. In the given facts and circumstances and in light of explanations offered by the appellant even in response to the show cause notices, it is clear that there was no effort to “evade” the payment of service tax - Noticeably, the appellant was raising bills on the contractors also to claim the service tax dues in terms of the contractual terms, and - there is no dispute raised in this regard - the collections made from the contractors on account of service tax chargeable were deposited in the government account from time to time. The insistence of the appellant that it would deposit the service tax with the government only when the contractors discharged their liability on this account may not have been a proper stand. But, from this, it cannot be deduced that the effort was to evade tax liability - Thus, the inhibition under Section 80 of the Finance Act, 1994 was attracted and penalty under Section 80 could not have been imposed - Decided partly in favour of assessee.
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