TMI Blog2015 (8) TMI 65X X X X Extracts X X X X X X X X Extracts X X X X ..... nstrated. In these circumstances the appellant claim at it initially thought that service tax was not payable on commission as the service was received outside India, though untenable, cannot be held to be malafide. - Section 80 ibid is clearly invokable for the purpose of setting aside penalty under Section 76 ibid - appellant paid the impugned service tax before the issue of Show Cause Notice and there was no suppression on its part as held by Commissioner (Appeals) - appellant paid the impugned service tax before the issue of Show Cause Notice and there was no suppression on its part as held by Commissioner (Appeals) - Decided in favour of assessee. - Appeal No. ST/485/2009-CU(DB) - - - Dated:- 7-5-2015 - G Raghuram, President And R K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... how cause notice it paid service tax out of Cenvat credit and it is a settled issue that such service tax can be paid out of Cenvat credit. Even so, to avoid dispute it paid the impugned service tax in cash also in the month of June 2008 which was before the issue of order-in-original dated 11.7.2008. In these circumstances no penalties need be imposed more so when whatever it paid was immediately available to it as Cenvat credit. There was no malafide in this regard as has been accepted by the Commissioner (Appeals). 4. The ld. DR, on the other hand, reiterated the contentions contained in the impugned order. 5 We have considered the contentions of both sides. That the service tax under reverse charge mechanism can be paid by way of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... because whatever tax was paid by the appellant was immediately available to it as credit. In these circumstances, Section 80 ibid is clearly invokable for the purpose of setting aside penalty under Section 76 ibid. Levy of interest in these circumstances would also be misplaced. Further, Section 73(3) ibid reads as under: 73(3) Where any service tax has not been levied or paid or has been short levied or short paid or erroneously refunded, the person chargeable with the service tax, or the person to whom such tax refund has erroneously been made, may pay the amount of such service tax, chargeable or erroneously refunded, on the basis of his own ascertainment thereof, or on the basis of tax ascertained by a Central Excise Officer before ..... X X X X Extracts X X X X X X X X Extracts X X X X
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