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M/s. Jubilant Agri And Consumer Products Ltd. Versus Customs Excise & Service Tax Appellate Tribunal And Another

2016 (41) S.T.R. 8 (All.) - Penalty u/s 78 - Business Support Services - non payment of service tax - Whether the imposition of penalty was justifiable when a categorical finding has been given that the appellant does not provide any service as provided under section 65 (104c) of the Act and consequently no penalty could be imposable under Section 78 of the Act - Held that:- The necessary ingredients for levy of penalty is where any service tax has not been paid by reason of fraud, collusion, wi .....

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n 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 For the Respondent : Vinod Kant Srivastava ORDER We have heard Shri Nikhil Agrawal, learned counsel for the appellant and Shri Parik Chandra, learned counsel holding brief of Sh .....

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pril 2010 to 14.11.2010. The Adjudicating Authority was of the opinion that the activity undertaken by the appellant was not a "job work" but falls under "Business Support Services" defined under Section 65(104c) of the Finance Act 1994 (hereinafter referred to as Act) which, for facility, is extracted hereunder: "The support services of business or commerce means services provided in relation to business or commerce and includes evaluation of prospective customers, tele .....

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; 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 .....

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normal period of limitation i.e for October 2009 to November 2010 was sought to be withdrawn. It was specifically stated in paragraph-5 of the application that appellant's appeal may be confined to the following : SCN Period covered Service Tax (Rs.) Interest (upto 31/05/12) Penalty (Rs.) SCN dated 28/10/2010 Apri'2007 to Sep'2009 1,11,77,664 47,56,923 1,11,77,664 SCN dated 28.10.2010 Oct'2009 to Mar'2010 Nil Nil 20,15,752 SCN dated 18.3.2011 Apr'2010 to 14.11.2010 Nil Ni .....

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uot; 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 application which was rejected by an order dated 29.11.2013 holding that the Tribunal has no power to review its ow .....

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ressing value of taxable services.- (1) Where any service tax has not been levied or paid or has been short-levied or short-paid or erroneously refunded, by reason of - (a) fraud; or (b) collusion; or (c) wilful mis-statement; or (d) suppression of facts; or (e) contravention of any of the provisions of this Chapter or of the rules made thereunder with intent to evade payment of service tax, the person, liable to pay such service tax or erroneous refund, as determined under sub-section (2) of se .....

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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 .....

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urposes of this section, the service tax as reduced or increased, as the case may be, shall be taken into account: Provided that in case where the service tax to be payable is increased by the Commissioner (Appeals), the Appellate Tribunal or, as the case may be, the court, then, the benefit of reduced penalty under the second proviso to sub-section (1), shall be available, if the amount of service tax so increased, the interest payable thereon and twenty-five per cent. of the consequential incr .....

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