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Kalyani Enterprises Versus Commissioner of Central Excise

Waiver of penalty - suppression of fact - 'Manpower Recruitment and Supply Agency Service' during the period of October 2005 to March 2008 - Held that:- appellant themselves did not gave full details of liability of their service tax and the said details were collected by the Revenue from the customers of the appellant-assessee by the Central Excise Department. Also the appellant took the registration under Service Tax on 05.02.2008 but did not come forward to give the details of services provid .....

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inal imposed penalty of 200& of the liability of Service tax - Held that:- the penalty of 200% of the Service Tax due, which was the maximum fixed under the then law, can be imposed under Section 78 ibid. Therefore, the penalty of 200% of the tax due is not rightly justified and is reduced to 100% of the liability of payment of Service tax. There is no justifiable reason to interfere with in respect of imposition of penalty under Section 77 ibid. - Decided partly in favour of appellant-assessee .....

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registration certificate on 05.02.2008. 1.1. The show-cause notice dated 22.01.2009 issued to the appellant alleges that the appellant was supplying manpower and receiving labour and service charges from the customer parties from financial year 2005-06 onwards without obtaining registration and without payment of service tax, thereby contravening provisions of Sections 68, 69, 70 of the Finance Act read with Rules 6 & 7 of Service Tax Rules 1994. Vide this show-cause notice the appellant wa .....

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ght Hundred and Fifty Nine only) along with interest and imposed penalties of ₹ 1,000/- (Rupees One Thousand only) under Section 77 and penalty of ₹ 12,07,718/- (Rupees Twelve Lakhs Seven Thousand Seven Hundred and Eighteen only) under Section 78 and did not impose any penalty under Section 76 of the Finance Act. 1.3. The appellant viz. M/s. Kalyani Enterprises went in appeal against order-in-original dated 12.07.2010 before Commissioner (Appeals), who upheld the order-in-original an .....

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e of Superintendent of Central Excise prepared details for 2005-06, 2006-07 and 2007-08 and intimated by letter to Superintendent dated 21.04.2008. ii. Entire service tax of ₹ 2,81,062/- (Rupees Two Lakhs Eighty One Thousand and Sixty Two only) was paid along with interest of ₹ 60,180/- (Rupees Sixty Thousand One Hundred and Eighty only) on 19.02.2008 and 11.02.2008 respectively. iii. Inspite of payment of service tax and interest Department issued show-cause notice dated 22.01.2005 .....

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decisions of the Karnataka High Court: a) CCE & ST, LTU Bangalore Vs. Adecco Flexione Workforce Solutions Ltd. [2012 (26) S.T.R. 3 (Kar.)] b) CST, Bangalore Vs. Prasad Bidappa [2012 (26) S.T.R. 4 (Kar.)] c) CEA No. 62 of 2010 filed in Karnataka High Court by Commissioner 2015 (39) S.T.R. J90 3. The Revenue represented by learned AR Shri Pakshi Rajan, inter alia submits as follows: i. The appellant paid service tax but not before adjudication and after receipt of letter from Central Excise Ra .....

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nance Act provides for recovery of service tax for extended period of 5 years, when there is clear-cut suppression of facts by the appellant-assessee. iv. Decision of CESTAT, Ahmedabad in the case of IWI Crogenic Vaporization Systems India Vs. Commissioners of Central Excise, Customs And Service Tax, Vadodara-II [2015-TIOL-1458-CESTAT-AHM] decided on 29.06.2015 clearly supports that when the appellant-assessee was recovering tax from service recipients and not paying the same to the Department, .....

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ce recipients. The Departmental Officer in this case (Central Excise Range Officer) had to approach and make references to the service recipients namely M/s. Siddharth Industries, Belgaum of the appellant-assessee to get full details about the services given by the appellant-assessee, where they were liable to pay service tax. Once the Department started enquiries with the service recipients of the appellant-assessee and got the information, then only appellant-assessee came forward to pay the l .....

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ayment of service tax is not entirely proved by the facts on record. Had there been some doubt on the part of the appellant regarding the liability of service tax it would have been possible for them to take the benefit under the provisions of Section 73(3) of Finance Act 1994. In this regard provisions of Section 73(4) of Finance Act 1994 makes it very clear that the provisions of Section 73(3) of Finance Ac 1994 will not be applicable where there has been non-payment of service tax on account .....

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essee do not support them as in all these cases the fact is that there was no intention to evade or suppression against the assessee. Whereas present facts on record prove that the appellant themselves did not give full details of liability of their service tax and the said details were collected by the Revenue from the customers of the appellant-assessee by the Central Excise Department, when the appellant-assessee did not give the said details themselves. Thus when there are malafides proved o .....

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