TMI Blog2017 (4) TMI 896X X X X Extracts X X X X X X X X Extracts X X X X ..... the part of appellant to evade payment of service tax, the demand raised invoking the extended period also becomes unsustainable. Demand is time barred - appeal allowed - decided in favor of appellant. - ST/791/2011 - A/30448/2017 - Dated:- 20-3-2017 - Ms. Sulekha Beevi, Member(Judicial) Ms. A.S.K. Swetha, Advocate for the Appellant Shri Nagraj Naik, Dy. Commissioner/AR for the Respondent ORDER [Order Per Ms. Sulekha Beevi, C.S.] 1. The appellants are public sector bank and have service tax registration for rendering banking and other financial services. On verification of records, it was noticed by the department that during the period 10.09.2004 to 31.03.2007, the appellants had availed CENVAT credit on im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... set aside the penalty imposed under section 78 of Finance Act. That therefore the demand invoking extended period alleging suppression of facts with intent to evade payment of tax is not justifiable. That, therefore, the entire demand has to be set aside on the grounds of limitation. In support of her prayer, she relied upon the judgement in the case of R.N. Singh Vs Commissioner of Central Excise, Allahabad [2012 (28) STR 13 (Tri.-De)] . It is her contention that Section 73 has to be read alongwith Section 80 in a harmonious manner. Since the Commissioner (Appeals) has recorded a finding that the appellant does not have intention to evade service tax and the irregular credit was availed by them as they were not familiar with the law, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (vii) Invalid document. (viii) Document is for purchase of items and not for service tax. 5. Thus, from the above, it is seen that appellants have availed CENVAT credit on VAT and also on the personal telephone calls used by employees and also in some cases they have taken credit by double entry. Credit has been taken on documents for purchase of items and not on service tax. In certain cases, no documents have been furnished at all. The appellants, therefore, have no case on merits. The only contention put forward by Ld. Counsel is on the ground of limitation. It is her case that the appellant bank had taken irregular credit as they were not familiar with the law and the same has been recorded by Commissioner (Appeals). In para-6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot file any appeal on such findings. In the decision relied upon by the Counsel for appellant, the Tribunal has discussed similar issue and observed that Section 80 has to be harmoniously read alongwith Section 78 of Finance Act, 1994. The relevant para is reproduced as under: 7. After appreciating the submissions made by both sides, I find that as per the findings arrived at by the Joint Commissioner, Service Tax was not deposited due to unawareness which has been taken as a reasonable cause for failure to deposit of service tax. As such, he has not imposed any penalty by invoking Section 80 of the Finance Act, 1994. Section 80 is to the effect that no penalty shall be imposed on the assessee for any failure referred to any Section 76 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ] by following the precedent decision in the case of Vulcan Industrial Engineering Co. Pvt. Ltd. Vs. Commissioner [2006 (194) E.L.T. 331 (Tri.) has held that once the appellate authority comes to a finding for not imposing penalty on the ground that there was no intention to evade payment of duty, the same criteria would apply for the purpose of limitation. To the similar effect is he Tribunal's decision in the case of Kerala State Industrial Enterprises Ltd. V. CST, Trivandrum [2011 (21) S.T.R. 423 (Tri.-Bang.)] laying down that if the Commissioner has vacated penalties imposed on the assessee, the extended period could not have been validly invoked to confirm t demands. Further, the Tribunal in the case of M.P. Water and Power M ..... X X X X Extracts X X X X X X X X Extracts X X X X
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