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2016 (3) TMI 672 - CESTAT CHENNAI

2016 (3) TMI 672 - CESTAT CHENNAI - 2016 (44) S.T.R. 607 (Tri. - Chennai) - Imposition of penalties u/s.77 (1a), 77(2) and 78 of the Finance Act, 1994 - Appellant working as interior decorator not registered with the Service tax department and also not collecting any service tax on the invoices raised by him to his clients. After enquiry initiated, realised his liability and deposited tax with interest and 25% penalty before issue of show cause notice and after availing Cum tax benefit - Held th .....

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on 77(1)(a) and 77(2) are set aside and penalty imposed under Section 78 is restricted to 25% of duty demanded. Decided in favour of appellant - Appeal No.ST/40104/2015 - Final Order No. 40490 / 2016 - Dated:- 16-3-2016 - SHRI P.K. CHOUDHARY, JUDICIAL MEMBER For the Petitioner : Shri M N Bharathi, Advocate For the Respondent : Shri R Subramaniyan, AC (AR) ORDER PER P.K.CHOUDHARY The appellant M/s. HANS Interiors, Tiruchirapalli, are providing services of interior decorators and the appellant is .....

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the Ld. Commissioner (Appeals) and the Ld. Commissioner (Appeals) vide OIA No.132/2014 dated 13.10.2014 rejected the appeal and upheld the Order-In-Original. The appellant assessee has now appealed before this Tribunal. The Ld. Counsel, Shri M.N.Bharathi, Advocate, appearing on behalf of the appellant assessee submits that on an enquiry from the Anti Evasion, Tiruchirapalli, the appellant immediately got itself registered with the Service Tax Department and paid the service tax with interest and .....

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er submits that the Ld. Commissioner (Appeals) had failed to consider the various submissions and evidences on record and the order is therefore vitiated. He filed the copy of Section 73 of the Finance Act, 1994 and drew my attention to sub-section (4A) in support of his submissions. He relied on the following decision of the Tribunal in the case of Commissioner of Central Excise & Cus., Patna vs Advantage Media Consultant reported in 2008 (10) S.T.R. 449 (Tri. - Kolkata). 4. The Ld. AR, Shr .....

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d suppression with malafide intent on the part of the appellants in collecting the service tax. He further submits that the decision pertaining to the case of Commissioner of Central Excise & Customs, Patna Vs. Advantage Media Consultant (supra) cited by the appellant is not relevant as the assesse therein collected service tax on the commission amount wherever the service was rendered to private parties and failed to collect service tax from Government agencies like Indian Railways. Accordi .....

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nd got himself registered with the Service Tax Department and paid the demand of service tax alongwith the interest and 25% of the penalty on Cum Tax calculations. The relevant provisions of Section 73 (4A) is re-produced below for better appreciation of the statute. 4A) Notwithstanding anything contained in 6[sub-section (4)], where during the course of any audit, investigation or verification, it is found that any service tax has not been levied or paid or has been short levied or short-paid o .....

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twenty-five per cent. of the tax amount, before service of notice on him and inform the Central Excise Officer of such payment in writing, who, on receipt of such information, shall not serve any notice under subsection (1) in respect of the amount so paid and proceedings in respect of the said amount of service tax shall be deemed to have been concluded: 5 Inserted (w.e.f. 8.04.2011) by s.74 of the Finance Act, 2011(8 of 2011) 6 Substituted w.e.f. 28.5.2012 by the Finance Act, 2012 Provided th .....

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s no such requirement, the invoices recorded by the assessee in the books of account shall be considered as the specified records.] (5) The provisions of sub-section (3) shall not apply to any case where the service tax had become payable or ought to have been paid before the 14th day of May, 2003. (6) For the purposes of this section, "relevant date" means, - (i) in the case of taxable service in respect of which service tax has not been levied or paid or has been short-levied or shor .....

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n a case where the service tax is provisionally assessed under this Chapter or the rules made there under, the date of adjustment of the service tax after the final assessment thereof; (iii) in a case where any sum, relating to service tax, has erroneously been refunded, the date of such refund. 6. It would not be out of place to mention that Hon ble Supreme Court in Motilal Padampat Sugar Mills Co. Ltd vs State of Uttar Pradesh, (1979) 118 ITR 326 (SC) observed that it is well settled law that .....

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