TMI Blog2016 (3) TMI 232X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellants w.e.f 24.06.2005 started collecting the service tax from their customers and started paying the service tax. Therefore, by referring the case of M/s. Srilankan Airlines Vs. CST, Chennai [2012 (8) TMI 437 - CESTAT, CHENNAI], the demand of service tax along with interest is confirmed under the category of “Transport of Export Cargo” as there was no exemption of service tax on the said service from 16.06.2005 to 23.06.2005 and penalties are not to be imposed under Section 76 & 78. - Decided partly in favour of appellant - ST/133/2007 - Final Order No. 41452/2015 - Dated:- 28-10-2015 - R. Periasami, Member (T) And P. K. Choudhary, Member (J) For the Appellant : Mr. P.K. Sahu Advocate and Mr. Rajiv Pal Puri, Consultant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e same to the Government exchequer. Government again issued exemption Notification No. 29/2005-ST dated 15.7.2005 exempting service tax for transport of cargo by air. 3. He submits that common policy was to allow export of services without any tax. He further submits that the second Notification No. 29/2005 (supra) which was issued again exempting service tax which was originally exempted by Notification No. 28/2004 from 17.9.2004 to 15.3.2005 to be considered as clarificatory in nature. Therefore, service tax is not leviable for the intervening period between 15.3.2005 and 23.6.2005. He relied on para 3 of the Board's Circular No. 56/5/2003-ST dated 25.4.2003 and submits that as per the Board's Circular it is clarified that serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent. On limitation, he relied on the decision of the Hon'ble Supreme Court in the case of Continental Foundation Jt. Venture Vs. CCE, Chandigarh - 2007 (216) ELT 177 (SC). 6. He also submits that the service tax demand is confirmed on the value furnished by them which is not the correct value. He referred to the letter dated 3.5.2007 at pages 70 to 72 of the appeal folder. The letter was addressed to Commissioner of Service Tax wherein they have mentioned that an amount of ₹ 28,49,563/- has been wrongly shown as excess turnover towards the Hyderabad Sector under freight charges instead of ₹ 4,67,806/-. The details worksheet has been enclosed at pages 70 to 72. He submits that while giving the figures to the Department the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5.07.2005. Since the appellant's service do not quality under the Export of Service Rules for the period 15.03.2005 to 23.06.2005 and the payment was received in Indian currency.We also find that the appellants w.e.f 24.06.2005 started collecting the service tax from their customers and started paying the service tax. We find that there is an exemption from payment of service tax under specific Notification No.l28/2004-ST dated 17.09.2004 issued by the Government, which was withdrawn on 15.03.2005. Therefore, we find that there was no exemption of service tax on the said service from 16.06.2005 to 23.06.2005. In this regard, this Tribunal Bench, on identical issue, in the case of M/s. Srilankan Airlines Vs. CST, Chennai - 2013 (29) S.T. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the benefit of Section 80, extended period should not be invoked for demanding duty. This is only a broad rule. The very fact that Section 80 mentions penalty under Section 78 shows that in exceptional cases waiver can be granted under Section 80 even when suppression is invoked. We are of the view that the circumstances of this case and the legislative history of notifications like notification 28/2004-S.T., dated 17-9-2004, 9/2005-S.T., dated 3-3-2005 and 28/2005-S.T., dated 7-6-2005 and Notification 29/2005-S.T., dated 15-7-2005 would justify invoking Section 80 of the Finance Act, 1994. So we invoke the provisions of Section 80 and waive the penalty imposed on the appellants. 12. With the result, the demand for tax due during ..... X X X X Extracts X X X X X X X X Extracts X X X X
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