TMI Blog2016 (3) TMI 852X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee has informed the department of such payment in writing, the Department was not to serve any notice under Section 73(1). However it is right that Section 73(4) also makes it clear that wherever there has been such non-payment by reason of fraud, or collusion or willful misstatement or suppression of facts or contravention of any of the provisions of this Chapter or of the rules made thereunder with intent to evade payment of service tax, an assessee cannot take the benefit of provisions of Section 73(3) of Finance Act 1994. But the Department has completely failed to prove the same. Also it was entitled to take CENVAT credit for payment of service tax, therefore, the intention to evade payment of service tax do not arise and the pen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se notice was adjudicated by the Assistant Commissioner of Central Excise and EOU Division, Mysore vide his Order dated 02.04.2012 by which the above demand of ₹ 30,810/- (Rupees Thirty Thousand Eight Hundred and Ten only) including the Education Cess and Secondary Higher Education Cess was confirmed along with interest. The appellant-assesse had paid the above service tax totaling to ₹ 30,810/- (Rupees Thirty Thousand Eight Hundred and Ten only) and the interest of ₹ 9652/- (Rupees Nine Thousand Six Hundred and Fifty Two only) which was appropriated by the order-in-original passed by the Assistant Commissioner. Assistant Commissioner in his order also imposed penalty on the appellants under Sections 76, 77 (1a) and 77(2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Trip Ticket Cost was included in the price or transaction value of the imported goods and the customs duty was paid, the same amount was not to be treated as the value for levy of service tax. Appellant relies on BSNL Vs. Union of Indi [2006 (2) S.T.R. 161 (SC)]. iv. The allegations of suppression of facts or contravention of the Finance Act, 1994 with intention to evade payment of service tax and invoking larger period of limitation are not sustainable. When they had requested not to issue show-cause notice there was no justification for the Department to issue show-cause notice dated 22.07.2011 alleging suppression of facts. The show-cause notice is against the provisions of Section 73(3) of Finance Act 1994. v. Appellant rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Flexione Workforce Solutions Ltd. 2012 (26) STR 3 (Kar.) c) CST, Bangalore Vs. Master Kleen 2012 (25) STR 439 (Kar.) d) CCE, Nagpur Vs Murli Industries Ltd. 2015 (39) STR 1033 (Tri.-Mumbai) e) Sunita Tools Pvt. Ltd. Vs. CST, Mumbai-II 2015 (37) STR 644 (Tri.-Mumbai) f) CCE, Chennai-IV Vs. Tenneco RC India Pvt. Ltd. 2015 (323) ELT 299 (Mad.) g) Nirlon Ltd. Vs. CCE, Mumbai 2015 (320) ELT 22 (S.C) h) Veriton Software Solution Pvt. Ltd. Vs. CCE, C ST, Mysore 2015 (39) STR 845 (Tri.-Bang.) 4. Revenue represented by learned AR Shri Pakshi Rajan reiterated the findings given in the order-in-original and the order-in-appeal. 5. From the facts on record it is clear that there was no intention on the part of appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion or willful misstatement or suppression of facts on the part of the assessee-appellant with intention to evade payment of service tax. 5.2. Further it is also clear from the facts that the appellant-assessee was entitled to take cenvat credit for payment of service tax. Therefore Department cannot say that they had an intention to evade payment of service tax. 5.3. The appellant has made out a right case of defense under the provisions of Section 80 of Finance Act 1994 as the facts and circumstances indicate that there was reasonable cause for failure to pay service tax in this regard. 6. Considering above discussions the penalties imposed on the assessee under Sections 78 77(1a) and 77(2) of the Finance Act, 1994 are hereby s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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