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2015 (6) TMI 783 - CESTAT MUMBAI

2015 (6) TMI 783 - CESTAT MUMBAI - 2015 (40) S.T.R. 738 (Tri. - Mumbai) - Extended period of limitation - Penalty u/s 78 - share broking services - Held that:- No case of contumacious conduct and/or deliberate default of provisions of Act or Rules is made out against the assessee. The transactions have been found to be duly recorded in the Books of Account, as found by the Audit party. Further, the appellants have immediately applied for amendment to registration certificate pursuant to Audit sh .....

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the bills raised for underwriter s service, which escaped tax. In this view of the matter, I hold neither extended period of limitation is attracted nor any penalty is imposable under Section 76 or 78. Upholding the impugned order in part, I further set aside the penalty under Section 78 as imposed in the impugned order. - Decided in favour of assessee. - Appeal No. ST/525 & 528/11 - Final Order No. A/1716-1717/2015-WZB/SMB - Dated:- 3-6-2015 - Hon ble Shri Anil Choudhary, Member (Judicial),J. .....

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brief facts are that the assessee M/s Khandwala Securities Ltd. engaged in the business of providing various services like sale and purchase of share/security on which it earned brokerage and is also engaged in other activities being Corporate Advisory services and underwriting services, etc. The assessee is registered with the department since 1986 with respect to share broking services and have been paying tax regularly along with other compliances as prescribed. A show-cause notice dated 24. .....

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manner the assessee was made aware to discharge their obligation to pay Service Tax for underwriting commission and for the Management Constant s service. The show-cause notice is also silent as to whether the assessee admitted its liability or not and/or whether reasonable opportunities were provided to the assessee for depositing the tax, if any, admitted by the appellant. Further, from the Order-in-Original and other documents on record, it is evident that the assessees have filed amendment i .....

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dvisory services, which are not classifiable under Management Consultancy services and these services are classifiable under Banking and Other Financial Services for which the assessee has already registered on 17.12.2002, and the assessee have discharged Service Tax liability. It is further case of the appellant that they are providing underwriter s services since 1993. They have fully discharged their Service Tax liability on the services since the introduction of the tax liability on 16.10.19 .....

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demand of Service Tax of ₹ 13,92,874/- was confirmed under the head Management Consultant Services and an amount of ₹ 6,90,000/- was confirmed under the Head Underwriter Services for the period 1998-99 and 1999-00, upholding the invocation of extended period of limitation. Further, interest was also directed to be paid under Section 75 and further penalty under Section 76 @ ₹ 100/- per day from the due dates of payment of Service Tax till the actual dates of payment of Service .....

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38,250/- was received for placement of equity shares and was credit to EEFC account maintained with Union Bank of India and vide Notification No. 6/99-ST, the same was exempted from the Service Tax. He further found that part of the turnover on which tax was charged under Management Consultant s Service was actually covered under Banking and other Financial Service, which is introduced w.e.f. 16.7.2001. It was further found that the correct demand under the head Underwriter s service for the fin .....

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d cannot be called Management Consultant service. It was further held that there is no motive with an intent to evade tax. It was further observed that so far extended period is concerned, in respect of the other demand the services of Underwriting has been introduced w.e.f. 16.10.1998, as there was no doubt regarding the scope of the said service on part of the assessee, without reasonable cause have short deposited the Service Tax for underwriting service. Accordingly, the penalty under Sectio .....

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has not been charged in the bill and not paid, is merely a case of oversight. Further, no case of deliberate default is made out with an intent to evade payment of Service Tax as required for imposition of penalty. The learned Counsel further placed reliance to the following rulings of this Tribunal: - (i) Jubiliant Enpro (P) Ltd. Vs. Commissioner of Central Excise, Noida 2015 (38) STR 625 (Tri-Del) (ii) Palm Grove Beach Hotels Pvt. Ltd. Vs. Commissioner of Central Excise, Mumbai 2015 (38) STR .....

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