TMI Blog2018 (5) TMI 1237X X X X Extracts X X X X X X X X Extracts X X X X ..... not liable to pay tax, he is out of the ambit of Section 70 of Finance Act, 1944 Any penalty imposed upon him under Section 7C of Service Tax Rules is not applicable as the word used in the said Section is also assessee and the appellant in the given circumstances does not fall under that category for that particular period. Appeal allowed - decided in favor of appellant. - Service Tax Appeal No.ST/50811/2018 [SM] - A/51762/2018-SM[BR] - Dated:- 8-5-2018 - MRS. RACHNA GUPTA, MEMBER (JUDICIAL) Present for the Appellant : Mr.Rajat Arora, Advocate Present for the Respondent: Mr.K. Poddar, D.R. PER: RACHNA GUPTA Facts in brief for the present appeal are that the assessee admittedly is the holder of Service Tax R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0) STR 593 (Tri.-Kolkata) and Amrapali Barter Pvt. Ltd. vs. Commissioner of Service Tax, Kolkata 2013 (32) STR 456 (Tri.-Kolkata). 3. While rebutting these arguments, it is submitted by the ld. D.R. for the Department that the order of Commissioner (Appeals) is very much clear about non-applicability of the Circular as impressed upon by the appellant. However, still the penalty has absolutely been waived-of and the late fee has also been reduced to more than half. Appeal is accordingly, not maintainable. 4. After hearing both the parties, considered opinion of mine is that show cause notice has been issued under Section 70 (1) reads as follows:- SECTION 70. (1) Every person liable to pay the service tax shall himself assess the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been touched by the authorities below. 6. In view of entire above discussion, I hold that since for the period 2005 to the period 2008 the appellant was not liable to pay tax, he is out of the ambit of Section 70 of Finance Act, 1944. Any penalty imposed upon him under Section 7C of Service Tax Rules is not applicable as the word used in the said Section is also assessee and the appellant in the given circumstances does not fall under that category for that particular period. 6. The penalty of ₹ 70,000/- is therefore, held not sustainable. Appeal, accordingly, stands allowed. It is however, simultaneously directed that appellant for sake of intimation to competent authority shall file the ST-3 NIL return also for each Financia ..... X X X X Extracts X X X X X X X X Extracts X X X X
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