9911796707
TMI Blog2014 (4) TMI 639X X X X Extracts X X X X X X X X Extracts X X X X ..... 000/- has been worked out as service tax liability on the franchise services rendered by the appellant. (iii) An amount of Rs.9,54,306/- has been demanded being the service tax utilised wrongly in terms of Rule 6 of CENVAT Creidt Rules 2004(CCR). (iv) An amount of Rs.60,712/- being the credit of service tax held as wrongly availed in respect of mobile phones provided to the employees. (v) Penalty of Rs.200/- per day under Section of the Finance Act, 1994(the Act). (vi) Penalty of Rs.1000/- under Section 77 of the Act. (vii) Penalty of Rs.28 lakhs under Section 78 of the Act. (viii) Penalty of Rs.10,000/- under Rule 15(3) of CCR. (ix) Penalty of Rs.15 lakhs imposed under Rule 15(4) of CCR. 2. Heard both sides. 3. Before proceeding t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld also produce a couple of letters issued by such service receivers stating that their services were being totally exported. In respect of remaining units, the assessee could not produce supporting documents. In the result, Revenue has treated the appellant as ineligible for the exemption and on the entire amount of service charges received, tax has been demanded. The claim of the appellant has also been rejected on the ground that the services of BPO, call centers, medical transcription centres etc. are rendered in India and therefore the services themselves cannot be called as export of service. However, the fact remains that appellants had produced a list of customers to whom they had provided service and who were exporting of their ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rew my attention to a table submitted by him which is reproduced as under:- Month Service Tax taken Cummulative balance Service Tax Payable Payment of Service Tax Date of payment Interest Late Fee PLA Cenvat O.B. 8,059 8,059 Apr 04 3,785 11,844 273,244 225,371 May 04 8,712 20,556 313,957 Jun 04 69,218 89,774 591,446 Jul 04 24,625 114,399 400,417 1,354,000 10/4/2004 Aug 04 38,483 152,882 367,887 367,887 12/10/2004 50,525 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... credit at all till December 2004 and in the balance 3 months utilised the accumulated credit. It is his submission that the 20% requirement if it is calculated on an early basis, the appellant has violated the requirement of the rule only in the month of March 2005 to the extent of Rs.1,00,117/-. However, ongoing through the relevant rule which is Rule 6(3)(c) reads as follows:-The provider of output service shall utilize credit only to the extent of an amount not exceeding 20% of the amount of service tax payable on taxable output service. Learned AR submits that the rule is very clear and service tax is payable on a monthly basis and therefore the percentage mentioned in the rule has to be calculated on a monthly basis only. I find tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... redit upheld as irregular in respect of mobile phones, I find that the amount involved is small and there is no finding or no verification as to whether company had paid the tax or not. The learned counsel submitted that mobile phones were in the name of company only and tax was also paid by the company only. Having regard to the facts and circumstances and the proceedings and investigation, I find that the credit cannot be denied. Accordingly, the appeal in respect of these amounts has to be allowed in this regard. 4.5. Issue (v) & (vii): In respect of the penalties under Sections 76 & 78 of Finance Act, all the three amounts mentioned above have been discussed and waived. Therefore there will be no penalty on the appellant under these se ..... X X X X Extracts X X X X X X X X Extracts X X X X
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