TMI Blog2013 (7) TMI 487X X X X Extracts X X X X X X X X Extracts X X X X ..... se had not been able to conclusively prove that the material facts were in the notice of the department even prior to conduct of audit – appeal decided against assessee. - Appeal No. ST/722/2012-ST(SM) - - - Dated:- 15-7-2013 - Mr. Manmohan Singh, J. For the Appellant: Shri Abhinav Kalra, C.A. For the Respondent: Shri P.K. Sharma, DR JUDGEMENT PER: MANMOHAN SINGH; The appeal has been filed by M/s Automobile Sterling, Noida against the Order-in-Appeal 39/ST/Appl/NOIDA/35 dated 22.02.2012 passed by the Commissioner (Appeals), Customs Central Excise, NOIDA, who, upheld the findings of the adjudicating authority with regard to the liability of service tax and a penalty of Rs. 1,04,356/under Section 78 was imposed. 2. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 78 was imposed. Thought entire service tax of Rs. 1,04,356/was already paid on 01.10.2009 i.e. much before the issuance of show cause notice. SCN was issued on 28.1.2010. The appellant further deposited an amount of Rs. 41,830/towards interest under section 75 of Finance Act, 1994 on 23.12.2010. 5. The Ld. Commissioner (Appeals), Customs Central Excise, NOIDA vide Order-in-Appeal 39/ST/Appl/NOIDA/35 dated 22.02.2012 passed an order, upholding the findings of the adjudicating authority with regard to the liability of service tax thereby imposing a penalty of Rs.1,04,356/under Section 78 of Finance Act, 1994. 6. The ld. Counsel has challenged the order-in order No. 39/ST/APPL/NOIDA/35 dated 22.02.2012 of the Commissioner (Appeals). In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction (1A), the proceeding in respect of such person and other person to whom notices are served under sub-section (1) shall be deemed to concluded. 8. They have also contended that the demand was based on audit objection during the period from May, 2006 to September, 2007 that the appellant had availed cenvat credit on the strength of invoices/bills issued by other services centers seeking reimbursement of labour charges and service tax from the party against free service coupons issued at the time of sale of new motor vehicles. It was further pointed by the audit team that the appellant had availed cenvat credit of Rs.40,453/of service tax during May, 2006 to September, 2007 on the strength of bills issued by Tata Motors, Pune as access ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his count is not available. Provisions of Section 73(3) are also not available as element of suppression of is proved. 11. Further, there is no force in the contention of the appellant that provisions of section 83A of the Act have not been invoked for imposition of penalty under section 78. It is clearly pointed out in the order of the Commissioner (Appeals) that section 83A only provides monetary limit for imposition of penalty and it has nothing to do with imposition of penalty. Similarly their request for waiver of penalty in terms of section 80 of the Act is also not acceptable in view of the fact of suppression as discussed above. 12. Accordingly, I find no force in the appellant s contentions Hence the appeal is dismissed. (Pro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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