TMI Blog2015 (6) TMI 1141X X X X Extracts X X X X X X X X Extracts X X X X ..... the Service Tax - the appellant have deposited the tax and as such they are entitled to the benefit under the provisions of Section 73(3) of the Finance Act, 1994. The appellant was entitled to the benefit under the provisions of Section 73(3) and no show-cause notice is required to be issued - penalty set aside - appeal allowed - decided in favor of appellant. - ST/89825/2013 - A/89181/17/SMB - Dated:- 29-6-2015 - Shri Anil Choudhary, Member (Judicial) Shri G.L. Deshpane, Advocate for Appellant Shri B.K. lyer, Supdtu (AR) for Respondent ORDER Per: Shri Anil Choudhary The appellant M/s Gammon India Ltd. is engaged in the manufacture of part of towers, falling under Chapter 73 of the first schedule to Centra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 08. The same was provided by the appellant and on being so pointed out the appellant has further deposited the Service Tax for the services received during the year 2006-07 and 2007-08 on reverse charge basis by challan dated 13.7.2011. Thereafter the Revenue issue a show-cause notice dated 23.9.2011 for the period 2006-07 to 2009-10 alleging therein that as the appellant was a regular Central Excise Service Tax assessee and as such was aware of the provisions of Section 66A (1) of Chapter V of the Finance Act, 1994, as amended, read with Rule 2d(iv) of the Service Tax Rules, 1994 and was aware of its liability on reverse charge basis for Service charges paid to the agency located outside India and who does not have any office in India. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rged that the appellant on being so pointed out by the Revenue pursuant to Audit, admitted the liability for depositing the tax with interest and immediately paid the tax with interest. Further, reliance was placed on the CBEC letter No.137/167/2006-CX-4 dated 3.10.2007, wherein the Board has clarified that if tax and interest is paid before issue of show-cause notice, all proceedings are concluded, conclusion of proceedings under Finance Act, 1994, including proceedings under Sections 73, 76, 77 78. The appellant also relied on the ruling of the Hon'ble Karnataka High Court reported in 2011-TIOL-636-HC-KAR-Service Tax, wherein the appeal by Revenue, Hon'ble High Court observed in similar facts and circumstances that it is unf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n reverse charge basis was under litigation, which was settled in the year 2008-09, no mala fide and/or contumacious conduct can be attributable to the appellant for not depositing tax. Further, it is admitted fact that the factory of the appellant was under management of another company till 31.3.2008 and the appellant have succeeded the management of the factory w.e.f. 1.4.2008 (under order of amalgamation dated 2.7.2009). Even due to change of management, no mala fide or suppression of facts can be attributed against the appellant. The learned Counsel further urges that they are not disputing the demand of tax on the ground of limitation but in the facts and circumstances, no penalty is imposable. The learned Counsel further urges that i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee started paying tax on time and as such set aside the penalty imposed under Section 78. 3. The learned AR relies on the impugned order. He further states that the assessee is registered under the Central Excise Act and the Finance Act and was aware of the tax obligation; as such they cannot take shelter of the litigation by other parties when admittedly they were not in appeal against levy of Service Tax on reverse charge basis. It is further contended by the learned AR that the appellant was aware of Section 66A and as such there is contravention of the provisions on part of the appellant to discharge the Service Tax liability. 4. Having considered the rival contention, I find that it is an admitted fact that all the transacti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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