TMI Blog2017 (8) TMI 637X X X X Extracts X X X X X X X X Extracts X X X X ..... Negative List or any exemption, is absurd, as he has not even discussed the definition of service given in Section 65B(44) r/w definition of declared service in Section 66E of the Finance Act 1994, and how the transactions, in question, which admittedly involve transfer of right of possession and effective control over the goods during the period of lease would be covered by the above mentioned definition of service. As discussed above, since the leasing of helicopters by the Appellant from the two lessors abroad involves transfer of right of possession and effective control over the helicopters/transfer of right to use the helicopters from the lessors to the Appellant during the period of lease, these transactions being deemed sale covered by Article 366 (29A)(d) of the Constitution ,are not covered by the definition of service as given in Section 65B(44) read with Section 66E of the Finance Act, 1994 and, hence, there is no question of levying Service Tax on these transactions. As per the agreements with lessors, the transaction is of deemed sale within the manning of Article 366 (29A) of Constitution. Therefore mere non payment of sales tax will not alter the status of d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the lease agreement the hull and war insurance for full value of the lessors helicopter and equipment [(Clause V (A)]. 1.4. In Appellants helicopter lease agreement with M/S BLFIL, the terms are as under: (a) The equipment lease term is of 7 years [Clause (B) (6) of Schedule 2.1 of the Agreement]; (b) Then Lessee shall comply with and fulfill all requirements under all applicable laws. The Lessee shall release, defend, indemnify and hold lessor harmless from all losses, cost, damage, injuries, death, liability, claims etc, arising out of use or operation of the equipment and maintenance, service, repairs etc. [Clause 2 of Schedule 1.2 of the Agreement]; (c) The lessee shall be solely responsible for installation, operation and maintenance of the equipment and the equipment shall at all times be used for commercial or business purpose of the lessee [Clause 1 (IX) of Schedule 3.1 of the Agreement]; (d) As long as Lessee is not in default under this agreement, the lessor shall not interfere with the lessees quiet enjoyment and use of the equipment during the equipment lease term [Clause 5.2 of the Agreement]; (e) The lessee agrees to keep the equipment i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ders (lessors) located abroad, are liable to pay Service Tax under reverse charge mechanism. On this basis four SCNs dated 12/10/2012, 01/10/2013, 18/9/2014 and 09/3/2016 were issued to the Appellant for demand of Service Tax amounting to ₹ 4,94,65,906/-, ₹ 3,93,13,714/-, ₹ 4,65,95,335/- and ₹ 5,30,50,731/- respectively for period from 2008-09 to 31/3/2012; 01/4/2012 to 31/3/2013, 01/4/2013 to31/3/2014 and 01/4/2014 to 31/3/2015 respectively along with interest on it under Section 75 of the Finance Act, 1994 and also for imposition of penalty on the Appellant under Section 76/78 and 77 of the Act. The Appellants contention on the Service Tax Demand totaling ₹ 18,84,25,686/- (Rs.4,94,65,906/-+Rs.3,93,13,714/-+ ₹ 4,65,95,335/- + ₹ 5,30,50,731/-) with interest and consequential penalty on the leasing of helicopters from the two lessors abroad ADA and BLFIL is that since these leases are dry leases, that is, lease of only helicopters without any maintenance or operating crew and the lease agreements involve transfer of right to use the helicopters to the Appellant during the period of lease, the same are deemed sale under Art 366 (29A)(d) of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a specified period) for cash, deferred payment or other valuable consideration may fall under the purview of sale as per the definition in State VAT/Sales Tax. However the dealings between the Overseas Lessors and the noticees in this case are not merely transfer of right to use (the helicopter). The terms and conditions between M/s BLFIL (Lessor) and M/s HCPL (Lessee) and between M/s ADA (lessor) and M/s HCPL (Lessee) indicate that these were not mere transfer of right to use any goods but had other conditions and obligations, which purport the claim to mere transfer and highlight it to be more of contract for provision of certain services. It is clear that legal right of possession and effective control over the helicopters is with M/s HCPL in terms of the above agreements. However, as alleged in the impugned SCN, from the terms and language of the said activities spelt out in the agreements, it is evident that it is not a mere case of transfer of right to use. M/s HCPL was importing these helicopters for certain transportation services in India from lessors - ADA and BLFIL, situated overseas and these helicopters construe the infrastructure of the 'Noticees Area of business ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 1,68,01,844/-, during January 2011 July 2011 period, only the imposition of penalty of ₹ 1,68,01,844/- has been challenged. The Revenue also filed the Cross-objection. 2. Shri. Aneesh Mittal, the learned Counsel appearing on behalf of the Appellant, made the following submissions. (1) The main point of dispute in respect of which Service Tax demands totalling ₹ 18,84,25,686/- have been confirmed against the Appellant for the period from 2008-09 to 31/3/2015 along with interest on it and penalties of ₹ 4,94,65,906/- and ₹ 1,38,95,906/- have been imposed under section 76/78 along with penalty of ₹ 40,000/- u/s 77, is whether taking on lease two helicopters by the Appellant from ADA, Abu Dhabi and BLFIL, Ireland on dry lease basis without any operating or maintenance crew, is a service or is deemed sale under Art 366 (29A) (d) of the Constitution. Key question for resolving this dispute is whether the Appellants agreements with the foreign lessors are equipment lease agreements simpliciter involving transfer of right to use or whether the terms of the lease agreements imply provision of business support service by the foreign lessors to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ters/aircrafts are tangible goods and providing helicopters to a business man for use in his air transportation business would amount to supplying tangible goods for use, which is an altogether different activity. (4) From the Appellants lease agreement from ADA, Abu Dhabi and BLFIL, Ireland it is clear that- (a) The Appellant has received helicopters from the lessors without any crew or personnel for operation and maintenance and as such the lease agreements of the helicopter are the agreement for dry lease; (b) During the term of the lease the, helicopters were available for exclusive use of the Appellant for use in their business; and (c) The lessors, other than providing helicopters on dry lease basis, were not providing any service whatsoever. The Appellants agreements with the foreign lessors are lease agreements simpliciter, which admittedly involve transfer of right to use, as is clear from the Commissioners finding in para 25 of the impugned order. Therefore, these lease agreements have to be treated as deemed sale in course of import in terms of Section 5(2) read with Section 2(g) of the Central Sales Tax Act, 1956 and Article 366(29A)(d) of the Const ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant from overseas lessors, which involves transfer of right to use, being a deemed sale under Sec 5(2) read with Sec 2(g) of the Central Sales Tax Act 1956, would not attract Service Tax, stayed the lower authoritys order confirming service tax demand, interest and penalty. Same view has been expressed by the Tribunal in its stay order in case of Huawei Telecommunication India Co. Pvt. Ltd. Vs CST, Delhi reported as 2017 TIOL 211 CESTAT CHD. (7) While during the period prior to 1.7.2012, when service tax was leviable only on certain services defined in various clauses of Section 65(105) of the Finance Act 1994 containing the definition of the term Taxable Service and as such there was no definition of the word Service in the Finance Act 1994, the Tribunal in the judgments mentioned above, still held that a transaction which is a deemed sale under Article 366(29A)(d) of the Constitution, cannot be taxed as Service under Finance Act 1994. However w.e.f. 1.7.2012 negative list based taxation of service was introduced. During this period, Section 65B(44) defined the word Service as any activity carried out by a person for another person for consideration and includes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gards the imposition of Penalty of ₹ 1,68,01,844/- on the Appellant under Sec 78 of the Finance Act 1994 for alleged evasion of Service Tax of same amount by the Appellant during Jan 11-July 11 period on the taxable services of providing helicopters on charter hire basis to their clients in India, from the facts stated in Para 16(A) of the SCN dated 12.10.2012, it is absolutely clear that what has been portrayed as service tax evasion of ₹ 1,68,01,844/- during Jan 11-July 11 period is actually delayed payment of service tax for the months of Jan 11, Feb 11, March 11, May 11 and July 11, which had been paid by the Appellant on their own along with the interest for the period of delay. For imposition of penalty under Section 78, there must be non-payment, short payment or erroneous refund of Service Tax involving fraud, collusion, wilful mis-statement, suppression of fact or contravention of any provision of the Finance Act 1994 or of the Rules made thereunder with intent to evade the tax. In this case, none of these elements is present, as this is simply a case of delayed payment of service tax for certain months the period of delay varying from 15 days to 45 days, which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of import of Helicopter, there is no payment of sales tax, therefore the transaction is not of sale. With regard to the imposition of penalty of ₹ 1,68,01,844/- on the Appellant under Section 78 for alleged evasion of Service Tax of same amount during Jan 11-July 11 period, he submits that the short payment of Service Tax totalling ₹ 1,68,01,844/- for the months of Jan 11, Feb 11, March 11, May 11 and July 11 was deliberate and if this short payment had not been detected by the Department, the same would have remained unpaid and, therefore, penalty of equal amount has been correctly imposed on the Appellant under Section 78 of the Act. He, therefore, pleaded that there is no infirmity in the impugned order. 4. In rejoinder, Shri. Aneesh Mittal, the learned Counsel for the Appellant, submits that from the Commissioners finding in Para 25 of the impugned order with regard to transfer of legal right of possession and effective control over the helicopters during the period of lease, it is absolutely clear that the Commissioner has arrived at this conclusion after taking into account the terms and conditions of the appellants lease agreements with ADA and BLFIL. He al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver merely reiterated the departments comments in the Cross objection. 8. The Appellant are engaged in the business of providing helicopters on charter hire basis to their clients in Oil and Natural Gas industry in India, which, besides providing helicopters to the client, also involves (i) maintenance of the helicopters during the period of charter hire as per the DGCAs regulations by qualified engineers engaged by them so as to keep the helicopters always in airworthy condition; (ii) employing qualified and licensed crew for operating the helicopters and (iii) operating the helicopters for providing air transportation for the clients personnel and cargo as per their requirement. There is no dispute about the taxability of these services being provided by the appellant to their clients in India and service tax is being paid by the Appellant by treating this activity as supply of tangible goods for use without transfer of right of possession and effective control, which during the period prior to 1.7.2012 was taxable under Section 65(105)(zzzzj) of the Finance Act, 1994 and during period w.e.f. 1.7.2012 is taxable as a declared service under Section 66E of the Act. For providing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ners findings in Para 25 of the impugned order, these transactions are deemed sale under Art 366 (29A)(d) of the Constitution and Section 5(2) read with Section 2(g) of the Central Sales Tax Act, 1956 and, hence, these transactions, whether during the period prior to 1.7.2012 or thereafter, are outside the purview of Service Tax under Finance Act, 1994. Before coming to the question as to which of the two rival contentions is correct, it would be worthwhile to go through the legal provisions and the judgments of the Tribunal in this regard. 9. Since tax on sale or purchase of goods other than news papers is covered by Entry 54 of Lists II of the 7th Schedule of the Constitution of India, tax on sale or purchase of goods other than news papers can be levied only by the State Governments. Levy of this tax on intra state sales/purchase transactions is governed by the Sales Tax/VAT Acts of the States. Tax on inter-state sales of goods other than news papers being covered by Entry 92A of List 1 of the 7th Schedule of the Constitution is levied by the Central Government. But under Article 269 of the Constitution this Tax has been assigned to the States. Therefore while the Levy of C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsfer, delivery or supply is made. 11. After the 46th Constitutional Amendment the State Governments amended their Sales Tax Acts and accordingly expanded the definition of Sales so as to include within its purview the transactions mentioned in Clause 29A of Article 366 of the Constitution. The Parliament also amended Central Sales Tax Act, 1956 and the amended Section 2(g) of the Central Sales Tax Act included the six categories of transactions mentioned in Clause 29A of Article 366 of the Constitution within the definition of Sales . Clause (iv) of the amended Section 2(g) of the Central Sales Tax Act covers a transfer of right to use any goods for any purpose (whether or not for a specified period) for cash, deferred payment or other valuable consideration. While Section 3(2) of the Central Sales Tax Act provides as to when a sale or purchase of goods can be said to have taken place in course of inter-state 'trade or commerce', Section 5 provides as to when sale or purchase of goods can be said to have taken place in course of imports or exports. Section 5(2) of the Central Sales Tax Act provides that sale or purchase of goods shall be deemed to take place in cours ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nition of Service . Section 66D contained the negative list of Services and, thus, all the Services which were not in the negative list attracted Service Tax unless exempted by some exemption notification. The definition of Service as given in Section 65B(44) is as under: Service means any activity carried out by a person for another for consideration, and includes a declared service, but shall not include - (a) an activity which constitutes merely,- (i) a transfer of title in goods or immovable property, by way of sale, gift or in any other manner; or such transfer, delivery or supply of any goods which is deemed to be a sale within the meaning of clause (29A) of article 366 of the Constitution; or (ii) a transaction in money or actionable claim; (b) a provision of service by an employee to the employer in the course of or in relation to his employment; (c) fees taken in any Court or tribunal established under any law for the time being in force. 14. Thus, the main definition of Service besides excluding the normal sales involving transfer of title in the goods, also excludes the transfer, delivery or supply of any goods which is deemed to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould be subjected to Service Tax under any of taxable service in the Act during the period prior to 1.7.2012 when there was no definition of Service in the Finance Act, 1994 and only the Services defined in various clauses of Section 65(105) of the Act could be subjected to Service Tax. The clause (zzzzj) covered supply of tangible goods for use without transfer of possession and effective control over the goods . In this regard, in case of Petronet LNG Ltd. Vs Commissioner of Service Tax, New Delhi, decided by the Tribunal vide Final order No. 58076/2013 dated 24.10.2013 reported as 2013-TIOL-1700-CESTAC-DEL, and which also pertains to the period prior to 01.7.2012, the Appellant had chartered three LNG carrier vessels from a consortium of owners located overseas under three time charter agreements. The relevant clauses of the time charter agreements were as under: (i) All applicable licenses, permits, approvals, authorizations including Admiralty Publications etc., necessary for safe navigation and use of the LNG carrier vessels were to be provided by the owners to the Appellant (M/s Petronet LNG Ltd.). (ii) Appointment of the Manager, Master and other crew of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oods is a deemed sale falling within the purview of the legislative field of State Governments to tax the deemed sale as Sale and that power to tax what is a deemed sale as service is outside the legislative field of the Parliament. Thus the ratio of this judgment is that during period prior to 01.07.2012, when Service Tax was leviable only on certain services defined in various clauses of section 65(105) of the finance Act, 1994 and when Clause (zzzzj) of Section 65(105) covered supply of tangible goods for use without transfer of right of possession and effective control a transaction of supply of tangible goods by a person to another person which involved transfer of right of possession and effective control, being a deemed sale under Article 366(29A)(d) of the Constitution, could not be taxed as Service . On the second question in this case as to what constitutes the transfer of right of possession and effective control of the goods/transfer of right to use the goods, the Tribunal in this case relied upon the Supreme Courts judgment in the case of Bharat Sanchar Nigam Limited Vs Union of India [2006 TIOL-15-SC-CT-LB], judgments of Andhra Pradesh High Court in the cases ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry lease basis from the two overseas lessors - ADA, Abu Dhabi and BLFIL, Ireland are service transactions attracting Service Tax, has to be decided in the light of the legal position and the judgments of the Tribunal as discussed in Para 7 above. Accordingly, answer to the question as to whether these transactions are service transactions attracting Service Tax under the provisions of Finance Act, 1994 depends upon whether the lease of the helicopters by Appellant from the two lessors located overseas involves transfer of right of possession and effective control/transfer of right to use from the lessors to the Appellant. If these transactions involved transfer of right to use the helicopters by the foreign lessors to the Appellant, the same would be deemed sale in course of import under Section 5(2) read with Section 2(g) of the Central Sales Tax Act, 1956 and also under Article 366 (29A)(d) of the Constitution and if these transactions are held to be deemed sale, there would be no service tax liability for the period w.e.f. 01.7.2012, as during this period, for subjecting an activity to Service Tax, it was necessary to, first, determine as to whether the activity is covered by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is regard in the SCN dated 12.10.2012, Para 3 mentions the relevant terms and conditions of the Appellants lease agreement with M/s BLFIL, Ireland and Para 4 of the SCN mentions the relevant terms and conditions of the Appellants lease agreement with M/s ADA, Abu Dhabi. At the end of Para 4, the SCN states as under: It appears that legal right of possession and effective control over the helicopters is with M/s HCPL in terms of the above agreements Thus the SCN dated 12.10.2012 itself on the basis of the terms and conditions of the agreements, forms the tentative view that the Appellants lease agreements with foreign lessors involve transfer of right of effective possession and control over the helicopters to the Appellant during the period of lease. It is this view expressed in Para 4 of the SCN dated 12.10.2012 which has been confirmed by the Commissioner in Para 25 of the impugned order giving the following findings: It is clear that legal right of possession and effective control over the helicopters is with M/s HCPL in terms of the above agreement. The above finding of the Commissioner cannot be said to be a passing remark but is a conclusion arrived at a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laws and, (b) it is clear that the legal right of possession and effective control over the helicopters is with M/s HCPL (the Appellant) in terms of the Appellants lease agreements with M/s ADA, Abu Dhabi and M/s BLFIL, Ireland, and thereby implying that the lease transactions, in question, are deemed sale, has still gone on to give a finding that since the Appellant were importing these helicopters from the lessors - M/s ADA and M/s BLFIL located overseas for providing certain transportation services to their clients in India and since these helicopters construe the infrastructure in the Appellants area of business, the overseas lessors by supplying this infrastructure to the Appellant under contracts with specific terms and conditions were performing the services of supporting the business/commerce of the Appellant or in other words they were performing the support services of business or commerce (Infrastructure Support service) taxable u/s 65(105)(zzzq) r/w section 65(104c) of the Finance Act 1994, during the period prior to 01.07.2012. With regard to the period w.e.f. 01.07.2012 the Commissioner in para 33 of the impugned order has given the following findings 33. The no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trol over the goods during the period of lease would be covered by the above mentioned definition of 'service'. As discussed above, since the leasing of helicopters by the Appellant from the two lessors abroad involves transfer of right of possession and effective control over the helicopters/transfer of right to use the helicopters from the lessors to the Appellant during the period of lease, these transactions being deemed sale covered by Article 366 (29A)(d) of the Constitution ,are not covered by the definition of service as given in Section 65B(44) read with Section 66E of the Finance Act, 1994 and, hence, there is no question of levying Service Tax on these transactions. Though this point has been raised in grounds BB.3 and BB.6 of the 'Grounds Of Appeal' in the Memorandum Of Appeal filed by the Appellant, in the 'Memorandum Of Cross Objection' filed by the 'Department in respect of this appeal', there is absolutely no comment on this point as to how during the period w.e.f. 01.07.2012, the transactions, in question, are covered by the definition of service under Sec65B(44) read with the definition of 'declared service 'in Sec66E of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y etc., has been discussed in Para 19.1, 19.2 and 19.3 of the impugned order wherein the infrastructure has been described as basic physical and organizational structures needed for operation of a society or enterprise or the services and facilities necessary for an economy to function, like roads, water supply, sewerage, electrical grids, telecommunication, transport, etc. The Commissioner, however, has misinterpreted the term infrastructure and concluded that helicopters are infrastructure for providing air transportation services. The word infrastructure refers to physical and organizational structures needed for operation of a society or enterprise. The physical infrastructure for a country, city or an area would be roads, railways, air transportion, ports, water supply systems, sewers, electrical grids, telecommunications, etc., and the organizational structures would be the law and order machinery, health care system, education system, financial services etc. The infrastructure for air transportation would consist of the airports, air navigation system, training academies for training of pilots, aircraft maintenance engineers etc. which is necessary for operating the aircraft ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot to be said to an ancillary and peripheral activity of the Appellants business. Therefore, the supply of helicopters by the foreign lessors to the Appellant for use in the Appellants business of providing helicopters to their clients in India on charter hire basis cannot be classified as support service of business or commerce covered by Section 65(105)(zzzq) read with Section 65(104c) of the Act. (c ) During the period prior to 1.7.2012, Section 65A(1) provided that for the purpose of levy of Service Tax, classification of taxable services shall be determined according to the terms of various clauses of Section 65(105). The clauses of Section 65(105) defined various types of taxable services. Clause (a) of Sub-Section (2) of Section 65(A) provided that the Clause of Section 65(105) which provides most specific description shall be preferred over the Clause providing a more general distinction. In this case the nature of the transaction is supply of tangible goods by the foreign lessors to the Appellant on dry lease basis. Just because this transaction is not covered by Section 65(105)(zzzzj), as it involves transfer of right of possession and effective control, the same can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng of the helicopters by the Appellant from ADA, Abu Dhabi and BLFIL, Ireland as 'support service for business or commerce' covered by Section 65(105)(zzzq) read with Section 65(105) of the Finance Act, 1994 during the period prior to 01.07.2012 and as a service not covered by negative list during the period wef 01.07.2012; (b) Confirming Service Tax Demands totalling ₹ 18,84,25,686/- along with interest on it under Section 75 of Finance Act, 1994; and (c) Imposing penalty totalling ₹ 6,34,01,884/- (Rs. 4,94,65,906/- + ₹ 1,38,95,978/- + Rs, 40,000/-) under Section 76/78 and Section 77 of the Finance Act, 1994, is not sustainable and has to be set aside. 25. Now, we come to the question of imposition of penalty of ₹ 1,68,01,844/- on the Appellant under Section 78 of the Finance Act, 1994 for alleged evasion of Service Tax of this amount by the Appellant during Jan 11 July 11 period on the services of providing helicopters on charter hire basis being provided by the Appellant to their clients in India. In this regard, the Appellants contention is that what has been portrayed by the department as evasion of Service Tax totalling ₹ 1, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10098293 7929503 2168790 05.07.11 July 11 107679811 11091021 7321664 3769357 05.09.11 TOTAL 41297223 2,44,95,379 1,68,01,844 From the above chart given in Para 16(A) of the SCN dated 12.10.2012, it will be seen that (a) In respect of the months of Jan 11, Feb 11, Mar 11, May 11 and July11, as against the service tax liability of ₹ 27,91,823/-,Rs.78,14,992/-, ₹ 95,01,094/-, ₹ 1,00,98,293/- and ₹ 1,10,91,021/- respectively which was to be discharged in full by 5.2.11, 5.3.11, 31.3.11, 5.6.11 and 5.8.11 respectively, the Service Tax paid by the due date was ₹ 27,78,968/-, ₹ 33,04,839/-, ₹ 31,60,405/-, ₹ 79,29,503/- and ₹ 73,21,664/- respectively and thus, there were short payment of ₹ 12,855/-, ₹ 45,10,153/-, ₹ 63,40,689/-, ₹ 21,68,790/- and ₹ 37,69,357/- respectively for these five months whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was no justification for the Commissioner to confirm the above mentioned demand of ₹ 1.68,01,844/- along with interest by invoking proviso to Section 73(1) of the Act, ordering appropriation of the tax of ₹ 1,68,01,844/- along with interest of ₹ 1,57,921/- paid by the Appellant and then imposing penalty of ₹ 1,68,01,844/- on the Appellant under Section 78 as if this was a case of tax evasion. We, therefore, hold that this is simply a case of delayed payment of a part of service tax payable for the months of Jan 11, Feb 11, Mar 11, May 11 and July 11 which had been paid by the Appellant on their own along with the interest of the period of delay and since this is not a case of short payment of service tax involving fraud or wilful mis-statement or collusion or suppression of facts or contravention of the provisions of the Finance Act, 1994 or of the Rules made there under with intent to evade the tax, penalty under Section 78 is not warranted. The Commissioners order imposing penalty of Rs,.1,68,01,844/- on the Appellant under Section 78 for alleged evasion of Service Tax in respect of the taxable service being provided by them to their clients in India ..... X X X X Extracts X X X X X X X X Extracts X X X X
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