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2015 (11) TMI 526 - CESTAT MUMBAI

2015 (11) TMI 526 - CESTAT MUMBAI - 2015 (40) S.T.R. 820 (Tri. - Mumbai) - Penalty u/s 78 - Malafide intention - whether appellant have made out their case before the Commissioner (Appeals) for waiver of penalty under Section 78 - Held that:- Commissioner (Appeals) is not correct in holding that the appellant have not contested penalty under Section 78 in respect of intellectual property services. Now whether the appellant have made out the case for reasonable cause for waiver of penalty invokin .....

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ew of this position, appellant have not tried to hide any transaction of the royalty and for which legal agreement was singed by both the parties. - appellant have shown reasonable cause for non-payment of service tax on time, however the same alongwith interest has been paid by them. In view of the above position, I am of the view that appellant have made out the case of waiver of penalty under Section 78 by invoking Section 80 - Decided in favour of assessee. - APPEAL NO. ST/88548/14-MUM - Fin .....

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,10,592 was reduced to ₹ 6,20,019/- which (ii) Penalties under Section 77 and 78 in respect of service tax on renting of immovable property service was waived in terms of Section 80(2) of the Act. (iii) Penalty of ₹ 1,91,924/- related to demand on Intellectual Property service was upheld. 2. The appellant filed present appeal for setting aside the impugned order but during the hearing it was categorically stated by the Ld. Counsel Shri. Ganesh K.S. Iyer that they are not contesting t .....

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the ground that appellant have not contested imposition of penalty under Section 78 in respect of intellectual property services. He submits that para 3 of the impugned order discussed about the ground of appeal of the appellant, point no. 7 of para No. 3 mentioned that 'As the appellant were under bonafide belief of their activities being non taxable due to the confusion prevailing in field, they claimed immunity under Section 80 of the Act in respect of the penalties imposed'. He furth .....

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ishers, Ichalkaranji for using the goodwill 'Finished by Shri. Arvind processors Pvt. Ltd' for which they were receiving an amount as per the said agreement. The appellant was under bonafide belief that since the VAT has been paid on the entire amount of agreement the said use of goodwill shall not be liable for service tax. On this fact, appellant was under bonafide belief that the services is not taxable. He submits that appellant bonafidely entered into agreement and recorded the paym .....

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contested the penalty in respect of intellectual property service, as can be seen from the para 8 of the order in appeal. He submits that appellant has made ground of appeal before the Commissioner (Appeals) only for waiver of penalty in respect of "renting of immovable property services" and not in respect of "intellectual property services", therefore since the appellant have not contested the penalty under Section 78 in respect of intellectual property services before the .....

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have made out their case before the Commissioner (Appeals) for waiver of penalty under Section 78. I have carefully gone through the record as submitted by both sides. I find in the impugned order in sub para 7 of para 3 appellant's submission was recorded which is as under: "As the appellant were under bonafide belief of their activities being non taxable due to the confusion prevailing in field, they claimed immunity under Section 80 of the Act in respect of the penalties imposed" .....

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ng aside penalty under Section 80 in the following case laws. ETA Engineering Limited Vs. CCE 2004 174 ELT 19(Tri. LB) Ada Ranga Mandira Trust Vs. CCE 2007 6 STR 381(Tri Bang.) From the above recording in the impugned order as well as grounds made before the Commissioner (Appeals), it is clear that appellant has indeed contested the penalty as whole and waiver thereof was sought for under Section 80, therefore I find that the Commissioner (Appeals) is not correct in holding that the appellant ha .....

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