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2015 (11) TMI 524 - CESTAT MUMBAI

2015 (11) TMI 524 - CESTAT MUMBAI - TMI - Short payment of service tax - security agency services - Penalty u/s 76, 77 & 78 - Imposition of interest - Held that:- During audit of the appellant s record such as balance sheet, profit and loss account and ST 3 return. The short payment is due the differences between income shown in balance sheet for the year 2005-06 and ST 3 returns. I find that since actual income was declared in the books of account cannot be intention for evasion of Service Tax. .....

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ter conduct as compared to the assessees who never pay the service tax and contest service tax as well as penalties only for sake of litigate matter and evade payment of service tax. - since the appellant have paid service tax alongwith interest before issuance of show cause notice and the details were correctly declared in the books of accounts. I find that appellant has made out case for immunity in terms of 73(3) of Finance Act, 1994. In view of my above discussion, I set aside the penalties .....

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the order-in-original dated 19/4/2011 and rejected the appeal of the appellant. 2. The facts of the case is that the appellant engaged in providing security agency services. During the course of checking of records it was observed by the officer that during 2005-06 appellant had short paid service tax ₹ 48,702/-. However, the on pointed out by the department, the appellant vide letter dated 5/3/2010 informed that they have paid service tax outstanding against them. The show cause notice i .....

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6 of Finance Act, 1994. The penalty of ₹ 5,000/- was imposed under Section 77 and penalty of ₹ 48,702/- was also imposed under Section 78. Aggrieved by the said order-in-original, appellant filed appeal only in respect of penalties imposed on them. The Commissioner (Appeals) rejected the appeal and upheld the order-in-original, therefore aggrieved by the said order in appeal, appellant is before me. 3. None appeared on behalf of the appellant nor any adjournment request is on record. .....

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[2012(27) STR 225 (KAR)] (f) CCE, Bangalore Vs Mater Kleen [2012(25) STR 439 (KAR)] (g) Bipco Industries (Tools) Pvt. Ltd. Vs. CCE, Daman [2014(35) STR -349 (Tri.- Ahmd)] 4. Shri. S.R. Nair, Ld. Examiner (A.R.) appearing on behalf of the Revenue reiterates the findings of the impugned order. He further submits that as per the appellants ground of appeal before the Commissioner (Appeals) as well as in the present appeal is for the waiver of penalty invoking Section 73(3) of Finance Act, 1994. He .....

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ittedly immunity provided under Section 73(3) cannot be extended to the appellant. Ld. A.R. relied upon judgment of this Tribunal in case of K. Madhav Kamath Brother & Co. Vs. Commr. of C. Ex., Mangalore [2015(38) S.T.R. 249 (Tri- Bang.)], wherein it was held that when the demand is for extended period and the same was not challenged, the appellant conceded suppression of facts with intent to evade payment of service tax, therefore penalty under Section 78 is rightly imposable. 5. I have car .....

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