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2016 (3) TMI 529 - CESTAT BANGALORE

2016 (3) TMI 529 - CESTAT BANGALORE - TMI - Imposition of penalty - Section 77 (1)(a) of Finance Act, 1994 - Lapse in making amendment in registration certificate - Held that:- the assessee was already registered with the Service Tax department for other categories of services, though they did not amend the registration by making addition of services namely “supply of tangible goods services.” It is clear that there has been lapse in making amendment i.e. of non-addition or non-amendment to the .....

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A, TECHNICAL MEMBER For the Petitioner : Mr. Rajesh Kumar, C.A. For the Respondent : Mr. Mohammad Yusuf, A.R. ORDER PER : ASHOK K. ARYA Both the parties have been heard in detail. 2. Appellant namely M/s Rajapur Minerals were issued show-cause notice for liability of service tax on their output service namely supply of tangible goods service which was introduced and made liable for payment of service tax with effect from 16.05.2008. The period of demand is from 16.05.2008 to 31.12.2008. 2.1 The .....

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of service tax of ₹ 18,85,649/- was paid by the assessee through debit in CENVAT credit account. 2.2 The show-cause notice was adjudicated by the Addl. Commissioner confirming the demand of service tax of ₹ 18,85,649/- and the payment made through debit of CENVAT credit account by the appellant assessee was appropriated and demand of interest was also confirmed. It was mentioned in the order-in-original (O-in-O) that interest had been paid by the appellant assessee already which was .....

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the modification that penalty of ₹ 5000/- under Section 77 (1)(b) of Finance Act 1994 set aside . 4. The appellant namely M/s Rajapur Minerals is now before this Tribunal contesting order-in-appeal passed by Commissioner (Appeals). Learned Chartered Accountant Shri Rajesh Kumar appearing for the appellant vehemently argues that they all along had sufficient CENVAT credit and they had no intention not to pay service tax to the Govt Exchequer; there was confusion during the relevant period a .....

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for the new levy under Supply of Tangible Goods should not be held against them. This penalty under Section 77 (1)(a) should be dropped. 4.1 Learned advocate has cited in support the following case laws: 1) CCE Pune Vs Siddheshwar Textile Mills Pvt Ltd [2015(320)ELT 524 (Bom)] 2) Aditya Industries Vs CCE Hyderabad [2007(220)ELT 196(Tri-Bang)] 3) Dy Commr of C.Ex Thrissur- I Vs Apollo Tyres Ltd [2012(281)ELT 370(Ker) 4) Oil & Natural Gas Corporation Ltd Vs CCE & ST Surat [2015(38)STR 867( .....

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hen facts are different, the case laws quoted cannot be applied to the facts of the case; this is clearly proved that appellant collected the tax from their customers but did not want to pay, therefore, there cannot be any leniency towards the present appellant. Learned A.R.is relying upon the following case laws in this regard: 1) Ketan Engineering Services Pvt Ltd Vs CCE & ST Surat [2014(36)STR 196 (Tri-Ahmd)] 2) Bajrang Security Services Vs CST Ahmadabad [2010(19)S.T.R. 577(Tri- Ahmd)] 3) .....

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m all the customers. When the appellant was collecting service tax from their customers, it was their bounden duty to deposit such service tax with the Govt Exchequer. Arguments of the appellant that this levy on the service of supply of tangible goods was newly introduced with effect from 16.05.2008 does not hold sufficient force as based on the intelligence that the appellant assessee was evading payment of service tax, they were visited by the Revenue department on 26.11.2008 and it was found .....

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their customers. The appellant came to their senses only after the visit made by the Preventive Unit of the Revenue department on 26.11.2008. Argument of the appellant assessee that they were innocent and they were under confusion whether this service shall be liable for service tax hardly has got any force when they themselves were collecting service tax from their customers on the said services, though under the name of machinery hiring services . 6.1 Learned advocate for the appellant cites .....

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intention of the assessee to evade the tax. The learned advocate also argues that in the case of M/s Aditya Industries (supra) there was clandestine removal; it is pointed out that in that case, MODVAT benefit was not denied; here also assessee was allowed to make payments through CENVAT credit and there is no denial of any kind of benefit on account of CENVAT credit. The appellant assessee was allowed to pay by adjustment against the credit which was available with them. Strictly speaking, the .....

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y the appellant assessee, and the fact that the appellant did not file Returns of Service Tax also along with non-payment of service tax supports the case of the Revenue. In this regard, let us quote from Ketan Engineering Services Pvt Ltd which inter alia has held as below:- 5. It is observed from the facts available on record that the entire service tax payable was recovered by the appellant from the service recipients. Appellant was a registered unit and was well aware of their liability to p .....

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