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2016 (5) TMI 1206 - CESTAT CHENNAI

2016 (5) TMI 1206 - CESTAT CHENNAI - TMI - Imposition of penalty - Section 77 and 78 of the Act - Transport of goods by road and scientific and technical consultancy services - Technical testing done by a foreign service provider - Voluntarily paid service tax along with interest prior to issuance of SCN - Held that:- with regard to imposition of penalty under section 77, I find that department is correct in demanding the tax but the appellant had contended that penalty under section 77 ought no .....

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ant herein are manufactures of automobile parts. They are registered with service tax for the services relating to Transport of goods by road and scientific and technical consultancy services as a recipient of service. The appellant had failed to pay a sum of ₹ 9,87,814/- towards service tax for certain technical testing done by a foreign service provider and for which the appellant ought to have discharged the tax under reverse charge. Appellant had admitted their lapse and voluntarily .....

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fore the Commissioner (Appeals), and the learned Commissioner (Appeals) had held that since penalty under section 76 was not imposed, penalty under Section 78 is sustainable. 2. Shri S. Ramachandran, Ld. Consultant appeared for the appellant. He stated that penalty under section 78 is unsustainable since suppression of facts was not established; that the situation was revenue-neutral. The facts of the instant case comes under the category of section 73 (3) and not under section 73 (4) ; that imp .....

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for payment in accordance with the provisions of Section 68 or rules made thereunder, rendered themselves liable for penalty under Section 76, 77 and 78 of the Act. I find from the reading of the above that there is no specific allegation as to what was the offence which was committed along with guilty mind to invoke the proviso to Section 78. I find that in the instant case, the demand has been made based on the appellants book entries. In the facts of the present case, there was no allegation .....

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ds as under :- SECTION 73. Recovery of service tax not levied or paid or short-levied or short-paid or erroneously refunded. ... ... ... (3) Where any service tax has not been levied or paid or has been short-levied or short-paid or erroneously refunded, the person chargeable with the service tax, or the person to whom such tax refund has erroneously been made, may pay the amount of such service tax, chargeable or erroneously refunded, on the basis of his own ascertainment thereof, or on the bas .....

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aid by such person and, then, the Central Excise Officer shall proceed to recover such amount in the manner specified in this section, and the period of one year referred to in sub-section (1) shall be counted from the date of receipt of such information of payment. Explanation (1) - For the removal of doubts, it is hereby declared that the interest under section 75 shall be payable on the amount paid by the person under this sub-section and also on the amount of short payment of service tax or .....

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