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2015 (11) TMI 1089 - CESTAT MUMBAI

2015 (11) TMI 1089 - CESTAT MUMBAI - 2016 (42) S.T.R. 713 (Tri. - Mumbai) - Levy of penalty - Failure to file ST-3 Returns - Suppression of value - Evasion of service tax - appellant has discharged the Service Tax liability and interest thereof on being pointed out - Held that:- the responsible officials of the appellant were aware to the fact that the difference between the amounts of Service Tax paid and Service Tax collected was credited to the profit and loss account as commission to show mo .....

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espondent : Shri Vikram Kaushik, AC (AR) ORDER Per: M.V. Ravindran This appeal is directed against Order-in-Original No. 23/STC/BR/08-09 dated 24.9.2008 passed by the Commissioner of Service Tax, Mumbai. 2. The relevant facts that arise for consideration are that the appellant is a registered unit with the Department and engaged in the activity of issuing Air Tickets for Domestic as well as International routes to its customers; discharged Service Tax liability based on the basic fare charged by .....

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ltant Shri P.K. Agarwal had mis-guided them and cheated them while discharging the Service Tax liability for his personal benefits and they were dependent on him for all the Service Tax matters. It was also submitted that they have discharged the entire Service Tax liability and the interest thereof and there was no mala fide intention to evade the tax. Accordingly, they represented before the adjudicating authority to drop the proceedings initiated for imposition of penalties under Section 76, .....

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ter reading the entire records, he would submit that the Consultant/Internal Auditor Shri P.K. Agarwal was not a qualified person, who can work on behalf of them. It is his submission that the said Shri P.K. Agarwal had cheated the company and pocketed the difference of Service Tax paid and actually payable, though the appellant company had paid the same to him. He would submit that similar issue came up before the Tribunal in the case of Commissioner of Central Excise, Pune-I Vs. Shri Sai Enter .....

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tting aside of penalty by invoking Section 80 of the Finance Act, 1994. 4. Learned AR would submit that the statement of Shri P.K. Agarwal clearly indicates that Directors of the appellant company were having knowledge of the non-payment of correct Service Tax to the department during the period 1.4.2001 to 30.9.2006. It is his submission that if it is case of the appellant that Shri P.K. Agarwal had cheated them and pocketed the difference money of Service Tax paid to payable, they have not reg .....

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imposed under Sections 76, 77 and 78 of the Finance Act, 1994. 5.2 The learned Counsel s arguments for setting the penalties are unacceptable for more than one reason. Firstly, we find that Shri P.K. Agarwal had given details of the financial account of the appellant for the period 2001-02 to 2004-05 in the soft copy recorded in DVD which indicated the sales data of international and domestic air tickets and the ST-3 returns; were based on the actual Service Tax paid which was less than the tota .....

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the adjudication proceedings. We note that Shri P.K. Agarwal was put questions, of which relevant one, we reproduce, which indicates that the appellant was having the knowledge of the non-payment/short payment of Service Tax. Q.4 On finalization of the financial account did you inform the management or the Managing Partner about the liability towards Service Tax? Ans. Yes, it was duly informed. Q.14 Have you ever deleted any data from the computer system related to Service Tax including payment .....

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