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Vijay Enterprises Versus Commissioner of Central Excise, Pune-I

2017 (12) TMI 284 - CESTAT MUMBAI

Penalty u/s 78 - Delayed payment of service tax - payment of tax with interest on being pointed out but before issuance of SCN - invocation of Section 73(3) whether justified or not? - Held that: - SCN can be waived u/s 73(3) only when there is no suppression of fact or malafide intention with intend to evade payment of duty and the amount of service tax liability alongwith interest is paid by the assessee before issuance of the SCN. - In Section 73(4) of the Act, it is provided that if the .....

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-2017 - Shri Ramesh Nair, Member (Judicial) And Shri Raju, Member (Technical) Shri S.A. Gundecha, Advocate for Appellant Shri B.Kumar Iyer, Supdt. A.R. (A.R) for respondent ORDER Per: Ramesh Nair This appeal is directed against order-in-original passed by the Commissioner of Central Excise Pune-I whereby demand of ₹ 68,16,271/- was confirmed, said amount paid by the appellant was appropriated, demanded of interest under Section 75 of the Act, confirmed penalty of equal amount was imposed u .....

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-11. However after initiation of the investigation by DGCEI officer the appellant have discharged the entire service tax before issuance of show cause notice and the interest was paid subsequent to the demand of show cause notice. Being aggrieved by the order-in-original, to the extent of penalty of ₹ 68,16,271/- imposed under Section 78 of the Act, the present appeal filed by the appellant. 3. Shri S. A. Gundecha, Ld. Counsel appearing on behalf of the appellant submits that this is not t .....

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ould not have been imposed. He submits that the appellant did not have any intention to evade service tax, accordingly the penalty deserves to be waived invoking Section 80 of the Act. He submits that in the similar circumstances in various judgments it has been considered that the penalty under Section 78 cannot be imposed invoking Section 80 of the Act. He further submits that since the appellants have paid the entire service tax along with interest, the case is covered by Section 73(3) accord .....

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Commissioner of Central Excise, Pune-III Vs. Wings Travels - 2017 (47) STR 225 (Tri.-Mumbai) (v) SS Service Providers Vs. Commissioner of C.Ex. & S.T. Chandigarh-I - 2017 (47) STR 266 (Tri.-Chan.) (vi) Mindnapore Tyre Retreading Factory Vs. Commr. Of C. Ex., Haldia - 2013 (30) STR 569 (Tri.-Kolkata) (vii) Rinder Tools India Pvt. Ltd. Vs. Commissioner of C. Ex., Pune-I - 2017 (48) STR 154 (Tri.-Mumbai) (viii) Gujarat State Road Transport Corpn. Vs. Commr. (A), S.T., Ahmedabad - 2017 (49) STR .....

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collected. This shows the malafide intention of the appellant. He further submits that the appellant have also not declared the non-payment of service tax in the service tax return. As regard the submission of the Ld. Counsel for waiver of penalty invoking Section 73(3) of the Act, he submits that since the demand was raised by invoking the extended period, the ingredients required for invoking the extended period and for imposing the penalty under Section 78 are common. Therefore once the deman .....

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an Engineering Services Pvt. Ltd. Vs. Commr. C.Ex. & S.T. Surat - 2014 (36) STR 196 (Tri.- Ahmd.) (v) 3 Guys Vs. Commissioner of Central Excise, Haldia, - 2016 (42) STR 443 (Tri.-Kolkata) (vi) Inma International Security Academy P. Ltd. Vs. C.C.E., Chennai - 2006 (1) STR 289 (Tri.-Chennai) (vii) Jupiter Sea & Air Services Vs. Commissioner of C. Ex., Chennai - 2006 (3) STR 704 (Tri.-Chennai). 5. We have carefully considered the submissions made by both the sides. We find that the short is .....

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t is also observed that the appellants did not disclose the correct liability of service tax, even though collected, in their ST-3 returns, this clearly shows the malafide intention of the appellant. Had the appellant intended to discharge the service tax despite various difficulties faced by them, atleast they should have declared the correct value and dues of service tax in their ST-3 return which they failed to declare this established the malafide intention of the appellant. As regard the su .....

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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 refunded service tax, if any, which in h .....

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hort 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. (4) Nothing contained in sub-section (3) shall apply to a case where any service tax has not been levied or paid or has been short-levied or short-paid or erroneously refunded by reason of - (a) fraud; or (b) collusion; or (c) wilfulmis-statement; or (d) suppression of facts; or (e) contravention of any of the provisions of this Chapter or of the .....

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