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Vodafone Mobile Services Ltd. Versus Commissioner of Service tax, Pune

Short payment of Service Tax - payment of tax with interest before issuance of SCN - invocation of Section 73(3) and 73(4) - Held that: - Section 73(3) can be invoked only in a case where there is no suppression of fact on the part of the appellants. Otherwise in terms of sub-section (4) immunity under Section 73(3) is not available - the appellants knowingly that there is a short payment of service tax did not discharge the same. Therefore this is a clear case of suppression of fact on the part .....

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and 2010-11 there was a short payment of service tax. This was pointed out by the audit in December 2011. Thereafter the appellants have paid the service tax along with interest on 18.07.2013. The audit report was issued on 24.08.2014, the show-cause notice dated 13.04.2015 was issued proposing demand of short paid service tax and also for interest and penalty and restriction under Section 78. In the adjudication, demand of service tax amounting to ₹ 21,72,499/- and interest of ₹ 13 .....

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nsel for the appellants submits that short payment of service tax is only due to improper reconciliation for the reason that service tax was payable on receipt of the payment whereas the bills were raised for the total amount of service charges and due to mismatch of the bill amount and receipt amount same mistake has occurred and which resulted into payment of service tax ₹ 21.72 lakhs. He submits that there is no intention to avoid such payment for the reason that the appellant is discha .....

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following judgment:- i) CCE & ST vs. Adecco Flexione Workforce Solutions Ltd. 2012 (26) Service Tax Rules 3 (Kar.) ii) CCE & ST vs. Venkateshwaran Hatcheries Pvt. Ltd. 2016 (42) STR 565 (Tri-Mum_ iii) S.K. Electro Engineers vs. CCE 2015 (39) STR 686 (Tri-Mum) 3. On the other hand, Shri M.P. Damle, Ld. AC (AR) appearing on behalf of the revenue reiterates the finding of impugned order. 4. I have carefully considered the submission made by both sides. 5. The only defence of the appellants .....

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d, on the basis of his own ascertainment thereof, or on the basis of tax ascertained by a Central Excise Officer before service of notice on him under sub-section (1) in respect of such service tax, and inform the Central Excise Officer of such payment in writing, who, on receipt of such information shall not serve any notice under sub-section (1) in respect of the amount so paid: Provided that the Central Excise Officer may determine the amount of short payment of service tax or erroneously ref .....

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section and also on the amount of short payment of service tax or erroneously refunded service tax, if any, as may be determined by the Central Excise Officer, but for this sub-section. Explanation 2: For the removal of doubts, it is hereby declared that no penalty under any of the provisions of this Act or the rules made thereunder shall be imposed in respect of payment of service-tax under this sub-section and interest thereon. 73(4) Nothing contained in sub-section (3) shall apply to a case w .....

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