TMI Blog2018 (3) TMI 1384X X X X Extracts X X X X X X X X Extracts X X X X ..... o merit in the contention of the Revenue for the tax liability of the appellant in respect of supply of tangible goods prior to 16/05/2008. Eligibility of the appellant/assessee for concession under N/N. 12/2003 - Held that: - There is nothing in the present appeal to state that the Notification 12/2003-ST is not available because of existence of different facts which are evidenced. Penalty u/s 76 and section 78 - Held that: - the proceedings itself should have closed under Section 73 (3) as the service tax liability alongwith interest has been discharged prior to issue of show cause notice - penalty set aside. Appeal allowed - decided in favor of appellant. - Service Tax Appeal No.58371 of 2013, Service Tax Appeal No.59060 of 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant/ assessee for the period 01/05/2006 to 31/03/2010 covering various taxable services. The appellant/assessee filed their defence submissions. The Original Authority held that the appellant/assessee is liable to pay a service tax of ₹ 25,50,26,423/- and ordered appropriation of the such tax amount already paid by the appellant/assessee. He dropped the demand for ₹ 50,96,77,374/- on various grounds. He also imposed penalties under Section 76 and 77 but did not impose penalty under Section 78 of the Finance Act, 1994. 3. Aggrieved by the above order, Revenue preferred this appeal. The learned AR elaborating the grounds of appeal submit that Revenue is basically aggrieved by two findings of the Original Authority. The firs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned Consultant appearing for the appellant/assessee contested the grounds of appeal by the Revenue. He submitted that the supply of MSVs to ONGC and L T is in terms of charter agreement for the vessel. The terms of the agreement and the nature of agreement has been examined in all legal angles by the Original Authority and it is clearly a service taxable under supply of tangible goods, only w.e.f. 16/05/2008. The same service cannot be taxed under any other heading on the ground that BSS will also cover the overall scope of the present activity. He submitted that there is no legal sanction for taxing the same service under two different heading for two different period. He relied on certain case laws in support of his submission. 6. Rega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... continued and in adjudication order the amount paid was fully appropriated against the liability confirmed. 8. Elaborating the grounds of appeal by the appellant/assessee, the learned Consultant submitted that they are aggrieved by the imposition of penalty under Section 76. He submitted when the case is fit for closure without proceedings, the Original Authority could not have imposed penalty under Section 76. Either the case could have been closed under Section 76 or penalty could have been waived under Section 80 during the proceedings. There is a reasonable cause for non-payment of service tax in time. There were delays due to financial difficulty. However, wherever there was delay interest as applicable has been discharged. Accordi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Tribunal, we hold that there is no merit in the contention of the Revenue for the tax liability of the appellant in respect of supply of tangible goods prior to 16/05/2008. 10. The second major point contested by the Revenue is with reference to eligibility of the appellant/assessee for concession under Notification 12/2003. We have perused the grounds of appeal by the Revenue, it is contended by the Revenue that such abatement can be allowed only if the sale is evidenced. We note that the Original Authority did examine the terms of the said notification alongwith material evidences like invoices, chartered accountant certificate and the terms of the arrangement with the clients to arrive at the factual finding. Against such factual f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on to evade payment of service tax on this account by the NOTICEE. Nor has any evidence brought on record by the Department that the tax has been paid only because of the effort made by the Department. Though the department has alleged a deliberate intention of avoiding payment of service tax they have failed to produce any evidence of any evasion or any reason to Levy any penalty on the above two issues. 118. As regards the other services viz. Ship Management service, Erection Commissioning and Installation service and Maintenance and repair service I find that the tax in the earlier period was paid through CENVAT and through cash after March 2008. There has however been delay in payment on various occasions. Also, I find that the De ..... X X X X Extracts X X X X X X X X Extracts X X X X
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