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2016 (9) TMI 1109 - CESTAT BANGALORE

2016 (9) TMI 1109 - CESTAT BANGALORE - TMI - Imposition of penalty without quantification of the penalty amount - Section 78 of the Finance Act, 1994 - contravention of the provisions of Finance Act, 1994 - non-discharge of service tax on the invoices raised in respect of Annual Maintenance Contracts (AMC) on their customers - service tax alongwith interest discharged before issuance of SCN - Held that:- Section 73(3) is very clear as it says that if tax is paid along with interest before issuan .....

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cealment 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 favour of appellant - ST/23040/2014-SM - Final Order No. 20807/2016 - Dated:- 21-9-2016 - Shr .....

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the present case are that the appellants are engaged in the business of as sole distributors for M/s Mitsubishi Company in Japan and registered under the category of maintenance or repair service with effect from 07/01/2005. The Audit Wing of Service Tax Commissionerate, Bangalore undertook the audit of records of the appellant during the period from October 2004 to September 2009 and during the audit, it was observed that the appellant has not discharged service tax on the invoices raised in r .....

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alled 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 ne .....

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77 & 78 of the Finance Act. 3. In the meantime, the appellant shifted their registered office from HAL Second Stage, Indira Nagar to Binnamangala, Indira Nagar First Stage and the same was intimated to the Commissioner of Service Tax on 17.10.2012 and the same was acknowledged by the Department. Aggrieved by the Order-in-Original, Revenue filed an appeal before the Commissioner (Appeals) with prayer to modify the order of the original authority and to impose penalty under Section 78 of the F .....

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Maintenance Contract (AMC) does not attract the provisions of Finance Act, 1994 and, therefore, did not register under the Service 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 .....

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2012 and the same was acknowledged by the Department. In spite of this, personal hearing notice was not sent to the appellant s new address and hence, the appellant could not appear before the Commissioner (Appeals). He also submitted that the original authority on the basis of evidence on records came to the conclusion that there was justifiable reason for the appellant not to deposit the service tax and interest and immediately on being pointed out by the audit team, the appellant paid the ent .....

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12 (26) S.T.R. 3 (Kar.)] (ii) Tamilnadu Housing Board vs. C.C.E., Madras [1994 (74) E.L.T. 9 (S.C.)] (iii) C.C.E., Bangalore-I vs. Geneva Fine Punch Enclosures Ltd. [2011 (267) E.L.T. 481 (Kar.)] (iv) Prince Thermal India P. Ltd. vs. c.C.E., Nagpur [2013 (30) S.T.R. 394 (Tri.-Mumbai)] (v) JCT Electricals vs. CCE, Mangalore [2015 (39) S.T.R. 131 (Tri.-Bang.) (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. f .....

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