TMI Blog2016 (9) TMI 1109X X X X Extracts X X X X X X X X Extracts X X X X ..... believed that he is not liable to pay service tax but during the audit, the audit party informed him that he is liable to pay service tax, then he immediately paid the entire service tax along with interest. Except mere allegation of suppression, the Department did not bring any material on record to prove that there was suppression and concealment of facts to evade payment of tax. Consequently, in my opinion, the imposition of penalty under Section 78 of the Act is not justified and bad in law. Moreover, in the impugned order, the learned Commissioner (Appeals) has not recorded any finding on suppression of facts by the appellant with an intention to evade tax. In view of the above discussion, I set aside the impugned order. - Decided in f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regarding service tax was not discharged in respect of supply, installation, testing of UPS systems supplied and installed by the appellant between January 2005 to December 2008. When it was brought to the notice of the appellant, immediately the appellant discharged the service tax liability of ₹ 9,59,575/- and interest of ₹ 3,59,703/-. Thereafter, a show-cause notice was issued to the appellant alleging contravention of the provisions of Finance Act, 1994. The appellant filed reply to the show-cause notice and submitted that annual maintenance or repair of service was brought under service tax net with effect from 10.9.2004 and it had not collected service tax from customers/clients in respect of AMC between October 2004 to J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vice Tax under this category. He also submitted that service tax on Annual Maintenance Contract (AMC) came into effect from 10.09.2004 and the service tax is in the initial stage and the appellant was ignorant about the said provisions. He further submitted that the appellant was under bonafide belief that supply of UPS systems attracts only VAT and not service tax. The appellant was also under bonafide belief that it was either VAT or service tax and not both in case of erection, commissioning and testing of UPS and, therefore, the appellant was not registered or collected service tax under this category. He further submitted that the impugned order has been passed in violation of principles of Natural Justice in spite of the fact that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .) (vi) C.C., C.Ex. S.T., Guntur vs. OTS Advertising P. Ltd. [2013 (32) S.T.R. 303 (Tri.-Bang.)] 6. On the other hand, the learned A.R. for the Revenue reiterated the findings of the Commissioner (Appeals). In support of his submission, he relied upon the decision of the Tribunal in the case of United Udyog vs. Commissioner of C. Ex., Haldia [2015 (39) S.T.R. 148 (Tri.-Kolkata)]. 7. After considering the submissions by both the parties and perusal of the provisions of Sections 73, 76 78 of the Finance Act, 1994 and the judgements relied upon by the appellant cited supra, I find that Section 73(3) is very clear as it says that if tax is paid along with interest before issuance of show-cause notice, then in that case, show-ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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