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2016 (5) TMI 845 - CESTAT MUMBAI

2016 (5) TMI 845 - CESTAT MUMBAI - 2016 (44) S.T.R. 66 (Tri. - Mumbai) - Waiver of penalty imposed under Section 78 of the Finance Act, 1994 and late fee - Section 80 ibid - Erection, commission and installation services providing exclusively to state Government company - Delay in filing of ST-3 returns under Section 70 of the Finance Act, 1994 read with Rule 7C of Service Tax Rules - Held that:- the appellant have entertained bonafide belief in non payment of service tax for the reason that the .....

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ervice tax demand confirmed has been paid before adjudication alongwith interest. I found that appellant have shown reasonable cause for non payment of service tax on due date. Accordingly they have made out a case for waiver of penalty in terms of Section 80 of the Finance Act,1994. Therefore the penalty imposed under section 78 invoking Section 80 of the Finance Act is waived of. - As regard the late fee, it is found that admittedly the service tax was confirmed only for the period July, .....

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ith Rule 7C of Service Tax Rules, 1994. - Decided partly in favour of appellant - Appeal No. ST/85840/15 - A/87319/16/SMB - Dated:- 27-4-2016 - MR. RAMESH NAIR, MEMBER (JUDICIAL) For the Petitioner : Shri. Amit Agrawal, CA with Shri. Kaushik Khairnar, Advocate For the Respondent : Shri. V. Kaushik, Asstt. Commissioner(A.R.) ORDER PER : RAMESH NAIR This appeal is directed against Order-in- Original No. 69/ST/COMMR/2014 dated 24/12/2014 passed by the Commissioner of Central Excise, Customs & S .....

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r Section 75 of the Finance Act, 1994. iii) I impose penalty of ₹ 13,18,182/-@ 50% of the amount of Service Tax confirmed in terms of 1st proviso to Section 78 of the Finance Act, 1994. However, since details of the transactions are available on their specified records penalty would further be reduced to ₹ 6,59,091/- @ 25% of ₹ 26,36,363/-, if interest and 25% penalty also paid within 30 days of receipt of this order. iv) I order recovery of late fee, from the noticee, @ ₹ .....

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pany Ltd( herein after M/s. MSEDCL). On the basis of intelligence gathered by the officers of Aurangabad Commissionarate, investigation was carried out. It was found that appellant are providing erection, commission and installation services with material and paying service tax only on labour charges instead on total service charges, hence paying less service tax than what is require to be paid by them. A show cause notice was issued for the differential service tax wherein it was proposed to .....

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llant filed the present appeal only for waiver of penalty imposed under Section 78 and late fee for delayed filing of ST-3 returns under Section 70 of the Finance Act, 1994 read with Rule 7C of Service Tax Rules. 3. Shri. Amit Agrawal, Ld. C.A. with Shri. Kaushik Khairnar, Ld Counsel appearing for the Appellants submit that the appellant is providing service exclusively to State Government company i.e. M/s. MSEDCL therefore all the transaction are legitimate and the same is as per the contract b .....

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show cause notice was issued for demanding more than ₹ 2 crore of service tax but considering retrospective exemption notification almost 90% of the total demand was dropped by the Commissioner. This clearly shows that even there was confusion even within the department that whether the services provided to the electricity distribution companies of state government are taxable or otherwise. The service became taxable only from 1/7/2012 when the negative list of services were introduced in .....

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onafide belief that they are not liable for paying tax. At the same time, out of demand amount i.e. ₹ 26 lacs, an amount of ₹ 19 lacs was paid before issuance of show cause notice and remaining amount was also paid after issuance of show cause notice alongwith interest. Therefore entertaining their belief that the service tax is not leviable on their services provided to M/s. MSEDCL when it was made clear that service is taxable during the adjudication process appellant admittedly pa .....

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ee could have been demanded by the Adjudicating authority. 4. Shri. V. Kaushik, Ld. Asstt. Commissioner(A.R.) appearing on behalf of the Revenue reiterates the findings of the impugned order. He submits that from 1/7/2012 it became clear that service of the appellant are taxable and therefore subsequent to that it cannot be said that there is bonafide belief of the appellant in non payment of service tax for period 1/7/2012 onwards. Therefore the appellant could not make out a case for waiver of .....

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se notice demanded the service tax for an amount of ₹ 2.80 crore for the period April, 2008 to March, 2013 whereas in the impugned order the demand was reduced to ₹ 26.36 lacs which is for the period July, 2012 to March, 2013, this shows that there was serious confusion among the assessee as well as department about the levy of service tax on the services provided to State Government Electricity distribution companies. This confusion stand confirmed on the ground that to remove the c .....

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