TMI Blog2017 (5) TMI 1089X X X X Extracts X X X X X X X X Extracts X X X X ..... ill arise only in case where the ingredients like mis-statement, suppression of act, intention to evade tax or evidence are present. Such ingredients have not been categorically established in the impugned order - the case was fit for closure under the provisions of Section 73 (3) of the Act - appeal allowed - decided in favor of appellant. - Service Tax Appeal No. 50266 of 2014 - Final Order No. 52939/2017 - Dated:- 13-4-2017 - Shri S.K. Mohanty, Member (Judicial) and Shri B. Ravichandran, Member (Technical) Shri Chandan Kumar, Chief Manager for the appellant. Shri Ranjan Khanna, Authorized Representative (DR) for the Respondent. ORDER Per. B. Ravichandran The appeal is against order dated 24/09/2013 of Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a show cause notice was issued to the appellant to demand and recover service tax and to appropriate already paid service tax with interest. Proposal was also made for imposition of penalty under Section 76 and 78 even though Section 78 was not mentioned in the final charge made in the show cause notice. The Original Authority adjudicated the case and confirmed the service tax liability of the appellant alongwith interest and appropriated the amounts already paid towards the liability of tax and interest. He imposed penalties under Section 76 and 78 of the Finance Act, 1994. 2. The learned representative of the appellant submitted that the service tax liability is not being contested by the appellant. They have been acting as canalizing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aking owned by the Government of India cannot be attributed with a malafide intend especially in cases where full credit of tax is available to their own subsidiary units. He accordingly prayed for setting aside the penalties imposed on them. 3. The learned AR supported the findings of the Original Authority. He submitted that the appellant is a well organized, major public sector undertaking. They are fully aware of their tax liability and chose not to pay the liable tax in time. The non payment would not have come to the notice except for an enquiry by the officers. In such situation, the appellant cannot plead bonafide mistake and, as such, the penalties imposed are sustainable. 4. We have heard both the sides and perused the appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or closure of case under Section 73 (3) will arise only in case where the ingredients like mis-statement, suppression of act, intention to evade tax or evidence are present. Such ingredients have not been categorically established in the impugned order. Further, we may also note that the appellant being a public sector undertaking, there is a rebuttable presumption of their bonafide act, unless contrary is established. Also, we note that the service recipient being their own subsidiary, apparently entitled for Cenvat credit of the full amount, the intentional evasion of tax could not be substantiated. 5. In view of the above discussion and finding, we note the ground for initiating proceedings after a long gap of payment of tax with inte ..... X X X X Extracts X X X X X X X X Extracts X X X X
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