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2016 (2) TMI 871 - CESTAT BANGALORE

2016 (2) TMI 871 - CESTAT BANGALORE - 2016 (43) S.T.R. 394 (Tri. - Bang.) - Levy of penalty - proprietary concern - it was pleaded that the definition given for the services in question namely “Commercial or Industrial Construction” defined under Section 65(105)(zzq) of the Finance Act, 1994 earlier used by words “Commercial Concern” which was substituted by wordings “by any other person” by Finance Act, 2006 dated 18.4.2006 with effect from 1.5.2006, and therefore, the respondents had been unde .....

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effect from 1.5.2006 and the C.B.E.C’s letter No. 334/4/2006-TRU dated 28.2.2006; thus invoking the provisions of Section 80 of the Finance Act and the provisions of Section 73(3) of the Finance Act, 1994, the respondents’ case on non-imposition of penalty is sustainable and the appeal filed by the Revenue deserves to be rejected. - Decided against the revenue. - ST/2048/2012-SM - Final Order No. 20167 / 2016 - Dated:- 25-1-2016 - SHRI ASHOK K. ARYA, TECHNICAL MEMBER For the Petitioner : Mr. Aja .....

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argues that unless the Preventive Unit of the Commissionerate searched the respondents premises and seized the documents / records and investigation was conducted, the respondents case would have gone unnoticed and the amount would not have been recovered/lost to revenue; and penalties under Sections 76, 77 & 78 of the Finance Act, 1994 are imposable on the respondents. 3. Learned advocate Ms. Sudeshna Banerjee appearing for the respondents namely M/s Saju Engineering Company, Cochin pleads .....

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cern which was substituted by wordings by any other person by Finance Act, 2006 dated 18.4.2006 with effect from 1.5.2006, and therefore, the respondents had been under the impression that they being proprietary concern were not covered by wordings commercial concern and were consequently not liable to payment of service tax. She has also referred to C.B.E.C. letter No. 334/4/2006-TRU dated 28.2.2006 saying that in case of certain services, the Department states that wordings commercial concern .....

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olution Pvt. Ltd. Vs. Commissionerof Central Excise, Cus & S.T., Mysore [2015 (39) STR 845 (Tri.-Bang.)] (v) Infinity Credit Vs. Commissioner of Central Excise, Jaipur [2009 (16) S.T.R. 61 (Tri.-Del.)] (vi) Star Energy Systems Vs. Commissioner of Service Tax, Ahmedabad [2010 (20) S.T.R. 479 (Tri.-Ahm.)] (vii) Pratap Singh Jyala Vs. Commissioner of Central Excise & Service Tax, Meerut-II [2015 (40) S.T.R. 333 (Tri.-Del.)] Citing the CESTAT s Delhi Bench decision in the case of Infinity Cr .....

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at the Departments team of officers from the Preventive Unit visited the respondents premises based on the intelligence that the respondents were not remitting service tax involved, it is also on record that the respondents paid the dues of service tax along with interest on 27.9.2006 i.e. within 09 days of the visit of the Departmental officers. The learned Commissioner (A.R.) though very vehemently pleads that the respondents willfully suppressed and mis-stated the facts and are covered by m .....

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onsidering the fact that they were given cum-tax benefit by the Order-in-Original, they were entitled to the refund of the excess amount paid, as for that they had filed a refund claim with the Department; the appeal filed by the Revenue against the Order-in-Original was set aside by the Order-in-Appeal and the penalty imposed on the respondents was also set aside. 4.1. It comes out clearly on record that the respondents were misled by wrong advice, they got regarding liability of service tax fo .....

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