TMI Blog2015 (11) TMI 844X X X X Extracts X X X X X X X X Extracts X X X X ..... Act or the Rules made thereunder with the intent to evade payment of service tax. - categorical finding has been given by the Tribunal that the activity carried on by the appellant is a manufacturing activity which cannot be classified as a "business support service" nor can the activity of the appellant could be subjected to service tax under Section 65(104c) read with Section 65(105)(zzzq) of the Act. When no service tax is payable or leviable upon the appellant, the question of penalty or imposition of penalty could not arise. - Decided in favour of assessee. - Central Excise Appeal No. - 95 of 2014 - - - Dated:- 3-11-2015 - Hon'ble Tarun Agarwala And Hon'ble Vinod Kumar Misra, JJ. For the Appellant : Nikhil Agrawal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies, infrastructural support services and other transaction processing. Explanation- For the purposes of this clause, the expression infrastructural support services includes providing office along with office utilities, lounge, reception with competent personnel to handle messages, secretarial services, internet and telecom facilities, pantry and security. The Adjudicating Authority after considering the material evidence on record, held that the activities carried out by the appellant were in the nature of infrastructural support services and was consequently taxable under section 65 (105) (zzzq) of the Act. The Adjudicating Authority further held that since the appellant was the service provider and wilfully suppressed the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interest towards the imposition of service tax and interest for the period April 2007 to September 2009 and imposition of penalty for the period April 2007 to November 2010. The Tribunal, after considering the matter, held that the activities undertaken by the appellant is not a manufacturing activity and could not be classified as a business support services as provided under section 65(104c) of the Act and consequently was not taxable to service tax under section 65(105)(zzzq) of the Act. The Tribunal accordingly held that the demand towards service tax could not be validly imposed and consequently set aside the said demand. No order was however, passed on the imposition of penalty. The appellant accordingly filed a rectification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, penalty shall be reduced to fifty per cent. of the service tax so not levied or paid or short-levied or short-paid or erroneously refunded: Provided further that where such service tax and the interest payable thereon is paid within thirty days from the date of communication of order of the Central Excise Officer determining such service tax, the amount of penalty liable to be paid by such person under the first proviso shall be twenty-five per cent. of such service tax: Provided also that the benefit of reduced penalty under the second proviso shall be available only if the amount of penalty so determined has also been paid within the period of thirty days referred to in that proviso: Provided also that in case of a servi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst the total amount due from such person.] The necessary ingredients for levy of penalty is where any service tax has not been paid by reason of fraud, collusion, wilful mis-statement, suppression of facts or contravention of any of the provisions of the Act or the Rules made thereunder with the intent to evade payment of service tax. In the instant case, we find that a categorical finding has been given by the Tribunal that the activity carried on by the appellant is a manufacturing activity which cannot be classified as a business support service nor can the activity of the appellant could be subjected to service tax under Section 65(104c) read with Section 65(105)(zzzq) of the Act. When no service tax is payable or leviable u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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