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2015 (5) TMI 144 - CESTAT CHENNAI

2015 (5) TMI 144 - CESTAT CHENNAI - TMI - Levy of Penalty u/s 78 - Waiver u/s 70 - Industrial or Commercial Construction Service - Service tax collected but not remitted to Government account - Held that:- The appellants have already paid the entire demand along with interest, and the same was appropriated in the OIO. On perusal of the records, I find that it is clearly brought out in the show cause notice as well as in the adjudication order, the appellants have collected service tax amount on .....

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nce for invoking Section 80 - Following decision of Kedia Business Centre [2009 (3) TMI 85 - CESTAT MUMBAI] - Decided against assessee. - ST/357/2010 - Final Order No. 40447 / 2015 - Dated:- 17-3-2015 - Hon ble Shri R. Periasami, Technical Member,J. For the Appellant : Shri S. Ramachandra Rao, CA, For the Respondent : Shri M. Rammohan Rao, DC (AR) ORDER The present appeal has been filed by the appellant against the impugned order No. 35/2010 dated 18.03.2010, only against the penalty imposed und .....

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2008 confirmed the demand and also appropriated an amount of ₹ 28,92,635/- already paid towards service tax appropriated an amount of ₹ 57,852/- towards education cess and appropriated an amount of ₹ 75,639/- towards interest and imposed penalty under Section 76, 77 and equivalent penalty under Section 78 of the Finance Act, 1994. Appellant preferred appeal before the Commissioner (Appeals) against waiver of penalties. In the impugned order, the Commissioner (Appeals) has parti .....

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aken towards construction of residential complex. He further submits that immediately after pointed out by the Department, they paid the service tax amount of ₹ 22,30,957/- along with interest before issue of show cause notice and the remaining amount was paid before the adjudication order and also paid the interest thereof. He pleaded for waiver of penalty under Section 80 of the Act. He relied upon the following case laws in support of his contention. 1. Boving Fouress Ltd. Vs. CCE, Chen .....

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early ending September, 2005. Only after the case was registered by SIV section of Service Tax Commissionerate, evasion of service tax came to light. It is not the case of the appellant that voluntarily paid the service tax. He further submits that this is the case where the appellant collected the service tax along with the value of service rendered but failed to remit it to the department and knowingly suppressed the facts in their ST-3 returns filed in September,2005 and declared that taxable .....

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e entire demand along with interest, and the same was appropriated in the OIO. On perusal of the records, I find that it is clearly brought out in the show cause notice as well as in the adjudication order, the appellants have collected service tax amount on the taxable service rendered by them and failed to remit the same and also suppressed the facts in their half yearly return filed for the period September, 2005. They have filed nil return for the said period mentioning that they have not re .....

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d the service tax partially before the issue of show cause notice and the balance amount paid before adjudication. As rightly held by the adjudicating authority in his findings, the appellants have already registered with the department and filing returns regularly and during the period September, 2005 they have filed a nil return, in spite of knowing the fact that they already collected the amount from their clients on the above projects. Therefore, the appellants cannot plead for innocence for .....

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ued that, as the service tax was paid with interest prior to the date of issue of the show-cause notice, any penalty was not liable to be imposed on the appellant under any of the above provisions. In this connection, he has relied on the Bombay High Court s decision in CCE v. Gaurav Mercantiles Ltd. - 2005 (190) E.L.T. 11 (Bom.) and a plethora of orders by this Tribunal. The Hon ble High Court held that where the entire duty liability was discharged prior to issuance of show-cause notice, no pe .....

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ision in UOI & Ors. v. Dharamendra Textile Processors & Ors. - 2008 (231) E.L.T. 3 (S.C.). He has also pointed out that the above argument of the learned counsel cannot be accepted, in view of the Supreme Court s order on Civil Appeal No. 6435 of 2008 [2009 (235) E.L.T. A87 (S.C.)] (CCE v. Monarch Pipes Ltd.). It is submitted that the civil appeal was allowed by the apex court on the basis of the court s earlier decision in Dharamendra Textile Processors case and accordingly any penalty .....

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.T. 470 (Tri.-Bang.)], wherein it had been held that penalty under Section 11AC of the Central Excise Act was not imposable where the assessee had already paid duty before issuance of the show-cause notice. The final legal position is, therefore, that any penalty otherwise imposable under Section 11AC of the Act cannot be avoided on the ground that the duty amount was paid by the assessee prior to issuance of show-cause notice. I am of the considered view that this principle is applicable to the .....

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