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Celmech Engineering Versus Commissioner of Central Excise And Service Tax, Mangalore

2017 (8) TMI 470 - CESTAT BANGALORE

Non-payment of service tax - it was the case of Revenue that the appellant had collected the service tax and not paid to the Department - Held that: - in the case of IWI Crogenic Vaporization System India Vs. CCE Cus. and ST, Vadodara-II [IWI Crogenic Vaporization System India], this Tribunal has held that if the service tax has been recovered from the recipient and not paid the same to the Department, it tantamounts to intention to evade duty - in the case of Triton Communication Pvt. Ltd. [200 .....

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mpugned order dated 03.04.2013 passed by the Commissioner (Appeals) whereby the Commissioner (Appeals) has rejected the appeal of the appellant. Briefly the facts of the present case are that the appellants are registered with the Department under the category "Commercial Buildings & Civil Structures" and "Manpower Recruitment & Supply Agency". Department noticed that the appellant had not paid the service tax though collected for the period from 01.01.2010 to 31.03.2 .....

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y the appellant towards service tax confirmed and ₹ 1,08,506/- (Rupees One Lakh Eight Thousand Five Hundred and Six only) paid towards interest demanded. He also imposed penalty under Section 77 (2) and 78 of the Finance Act, 1994. Late fee under Rule 7C read with Section 70 was also demanded and the amount of ₹ 4,000/- (Rupees Four Thousand only) paid by the appellant was appropriated towards late fee. Aggrieved by the Order-in-Original, appellant filed appeal before the Commissione .....

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ed without considering all the facts and circumstances of the case. He further submitted that there is no suppression of fact because the appellant has filed ST-3 Return on 25.04.2011 wherein total taxable service was shown as ₹ 78,11,785/- (Rupees Seventy Eight Lakhs Eleven Thousand Seven Hundred and Eighty Five only) and the total tax paid with interest as ₹ 2,23,160/- (Rupees Two Lakhs Twenty Three Thousand One Hundred and Sixty only). On perusal of the ST-3 Return, the Range Offi .....

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ty Nine only) service rendered to M/s. Tech Sharp Engineers (P) Ltd., Chennai no service tax was collected. He has also stated that though service tax was collected in respect of M/s. MRPL, but the same was not paid to the Government due to financial difficulty since the amount due from M/s. Tech Sharp Engineers (P) Ltd. was not received in time. He also submitted that the service tax along with interest was paid before the issue of show-cause notice and therefore he should be given the benefit .....

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(Rupees Five Lakhs Eighty Four Thousand Five Hundred and Two only). The appellant had also paid ₹ 2,20,113/- (Rupees Two Lakhs Twenty Thousand One Hundred and Thirteen only) for the period 01.10.2010 to 31.12.2010 as per ST-3 Return. He further submitted that the financial difficulty is no ground for non-payment of service tax which has been collected by the appellant. In support of his submission, the learned AR relied upon the following decisions: a) Ketan Engineering Services Pvt Ltd Vs .....

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HM. h) IWI Crogenic Vaporization System India Vs. CCE, Cuss and ST, Vadodara-ll 2015-TIOL-1458-CESTAT-AHM 5. On the other had the learned counsel for the appellant relied upon the following decisions and submitted that a lenient view should be taken as far as penalty under Section 80 is concerned as there was a reasonable ground for the assessee not to pay the service tax in time. a) Omega Services and Consultants (P) Ltd. Vs. CCE, Cochin [2011] 46 VST 100 (CESTAT-BANG.) b) CST, Bangalore Vs. C .....

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