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2017 (6) TMI 431 - CESTAT BANGALORE

2017 (6) TMI 431 - CESTAT BANGALORE - TMI - Penalty u/s 76, 77 and 78 of FA - GTA service - abatement on the gross freight - case of Revenue is that the Commissioner does not have the power to waive penalties since the instruction of the Board in Circular dated 17.12.2004 excluded cases involving fraud, collusion, suppression of facts or willful mis-statement or contravention of the provisions of service tax with intend to evade payment of service tax - Held that: - the Commissioner in the facts .....

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fication. - The benefit under Section 80 extended as the service tax along with interest is paid before issue of SCN - penalty rightly set aside - appeal dismissed - decided against Revenue. - ST/CROSS/69/2010 , ST/933/2009-SM, ST/933/2009-SM - Final Order No. 20823 / 2017 - Dated:- 7-6-2017 - Shri S. S. Garg, Judicial Member Mr. Parasivamurthy N. K, AR For the Appellant Mr. Pradhyumna C. H. Advocate For the respondent ORDER Per S. S. Garg The present appeal has been filed by the Revenue ag .....

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s of the Central Excise (Preventive), Bellary Division, visited the business premises of M/s. Zeenath on 21.1.2006. On verification of records, they noticed that M/s. Zeenath were incurring the freight charges for transportation of iron ore to their customers through trucks and had availed the services of GTA for the same. In terms of Notification No.36/2004-ST, dated 31.12.2004 read with Rule 2(1)(d)(v) of the Service Tax Rules, 1994, the consignor or consignee who is one of the specified perso .....

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observed that M/s. Zeenath appeared to have contravened the provisions of the Finance Act, 1994 and rules made thereunder. After investigation, a show-cause notice dated 15.2.2007 was issued by the Commissioner of Central Excise, Belgaum demanding service tax of ₹ 1,56,21,327/- under the category of GTA Service. After following due process of law, the Commissioner adjudicated the show-cause notice vide Order-in-Original dated 28.8.2009, whereby the Commissioner has held that respondent wa .....

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83,436/- and interest of ₹ 2,31,368/- and the same was appropriated by the Commissioner. Further, the Commissioner, relying upon the Board s Circular No.341/18/2004 dated 17.12.2004, waived penalties invoking Section 80 of the Finance Act, 1994. 3. Heard both the parties and perused the records. 4. The learned AR submitted that the impugned order is not sustainable in law. He further submitted that once the extended period is invoked alleging suppression of facts with intend to evade payme .....

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services where barring few categories, the onus to pay service tax shifted to the receiver of service. He also submitted that the period involved in the present case is January 2005 to December 2005 during that period, the levy was newly introduced and respondent was not aware of his liability to pay service tax as receiver of service. On being proceeded against by the Department and coming to know of their liability to pay service tax as receiver of service, the respondent paid the same along w .....

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of service tax on the transportation charges was a bona fide mistake as the levy was newly introduced. He also submitted that as per Section 73(3) of the Act, the proceedings ought to have been concluded and no show-cause notice should have been issued but the same was issued on 15.2.2007 after the expiry of more than one year when the entire dues had already been paid. He further submitted that Commissioner after knowing that the respondents are entitled to abatement, passed the order appropri .....

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facts or willful mis-statement or contraventions of the provisions of service tax with intent to evade payment of service tax. 5.1 In support of his submission, he relied upon the following decisions: * Sujala Pipes Ltd. vs. Commissioner: 2015 (40) STR 606 * CST, Bangalore vs. Motor World: 2012 (27) STR 225 (Kar.) * S-Mac Security Services Pvt. Ltd. vs. CST: 2016 (45) STR 209 (Tri.-Bang.) * Ganesh Tours & Travels: 2010 (18) STR 171 (Tri.-Bang.) * CCE vs. Adecco Flexione Workforce Solutions .....

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