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Commissioner of Central Excise and Service Tax, Cochin Versus M/s Saju Engineering Company

2016 (2) TMI 871 - CESTAT BANGALORE

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 under the impression that they being “proprietary concern” were not covered by w .....

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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. Ajay Saxena, Commissioner(A.R.) For the Respondent : Ms. Sudeshna Banerjee, Adv .....

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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 that the Order-in-Appeal passed by the Commissioner (Appeals) has rightly c .....

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006 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 was substituted with the word person so as to extend the scope of services i .....

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[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 Credit (supra), learned advocate says that the respondents were also under bon .....

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spondents 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 mischief the provisions of Section 73(4) of the Finance Act, 1994, the Revenu .....

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ginal, 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 for their activity of Industrial Construction services. When it was pointed ou .....

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