TMI Blog2009 (10) TMI 228X X X X Extracts X X X X X X X X Extracts X X X X ..... examined is whether suppression of facts/mis-declaration should have been invoked or not in this case and penalty under section 78 is imposable. In view of the above interpretation given by me to the Notification which would mean that appellant would interpret the notification differently, penalty under section 78 of the Finance Act, 1994 cannot be upheld and is accordingly set aside. Penalty under section 77 has been imposed for late filing return which has to be upheld in view of the fact that return has been filed late. Both the appeals are decided in terms of the above observations. - ST/92 AND 103 OF 2009 AND ST/CO/30/2009 - A/2225-2227/WZB/AHD./2009 - Dated:- 30-10-2009 - B.S.V. MURTHY, TECHNICAL MEMBER Rajendra Nagar and H.D. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The appellants have been denied the benefit of Notification No. 19/2003-ST, dated 21-8-2003 on the ground that appellants had purchased items welding electrodes, welding gas etc. from the open market and used them for rendering services but they have not sold any of these goods to the clients and they had not charged sales tax or VAT in the invoices issued by them to their clients. 4. For ready reference, Notification No. 19/2003-ST, under consideration is reproduced below :— "In exercise of the powers conferred by section 93 of the Finance Act, 1994 (32 of 1994), the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts the taxable service provided to a customer in relation to commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry and Equipment, parts and any other material sold by the service provider. I cannot find any basis to interpret the notification to mean that if the service provider has not sold the material to the client but has used them while providing services either capital equipment or consumables, exemption is not available. The interpretation given by the lower authorities would mean that it is absolutely necessary to sell the goods to avail exemption. In view of the above, I cannot find fault with the appellants if they entertain bona fide belief that they are eligible for Notification and paid service tax by availing benefit. I am not required to go into correctness of the lower authorities' observations since the service tax liability and inte ..... X X X X Extracts X X X X X X X X Extracts X X X X
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