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2016 (11) TMI 141 - CESTAT BANGALORE

2016 (11) TMI 141 - CESTAT BANGALORE - TMI - Imposition of penalty u/s 78 of Finance Act, 1994 - Manpower Recruitment and Supply Agency Service - import of services from the foreign companies - levy of tax on import of service u/r 2(1)(d)(iv) of the Service Tax Rules, 1994 - Sections 73, 76 & 78 of the Finance Act, 1994 - suppression of facts - Held that: - Section 73(3) is very clear as it says that if tax is paid along with interest before issuance of the show-cause notice, then in that case, .....

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onsequently, 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 - penalty set aside - appeal allowed - decided in favor of appellant. - ST/20111/2014-SM - Final Order No. 20796/2016 - Dated:- 20-9-2016 - Shri S.S Garg, Judicial Member Mr. Kethan. L., C.A. For the Appellant Mr. N. .....

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, it was noticed that the appellant has imported services from the foreign companies. As per Rule 2(1)(d)(iv) of the Service Tax Rules, 1994, import of service is liable to service tax. On being pointed out by the Department, the appellant paid service tax amounting to ₹ 6,15,091/- along with interest of ₹ 2,07,281/- during October 2009. It was also noticed that the appellant has availed Cenvat credit on input services such as Sodexho passes (Rs. 9,275/- and interest of ₹ 1,580 .....

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8 of the Finance Act, 1994. The Additional Commissioner vide his order dated 29.8.2011 confirmed the proposal made in the show-cause notice. Aggrieved by the same, the appellant filed appeal before the Commissioner (Appeals) who dropped the penalty imposed under Section 76 but upheld the penalty imposed under Section 78 of the Finance Act, 1994. Aggrieved by the said order of the Commissioner (Appeals), the present appeal has been filed. 4. Heard both the parties and perused the records. 5. The .....

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scertainment and informs the officer of such payment, then the said Section does not give any power to such officer to issue a show-cause notice in respect of the tax so paid and such issuance of show-cause notice is sans force of law and accordingly, not sustainable and tenable. In support of this submission, he relied upon the following case laws : (i) Auto Transport Services v. Commissioner of C. Ex Jaipur-II [2006(3) S.T.R. 330 (Tri.-Del.)] (ii) Commissioner of Central Excise, Kolkata-I vs. .....

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