TMI Blog2018 (6) TMI 1154X X X X Extracts X X X X X X X X Extracts X X X X ..... 9/16/STB dated 29th November 2016 and application is allowed. - APPLICATION NOS: ST/ROM-92221 & 92222/2017 IN APPEAL NOS: ST/346/2012 & ST/86247/2014 - M/85568-85569/2018 - Dated:- 7-6-2018 - Shri M V Ravindran, Member (Judicial) and Shri C J Mathew, Member (Technical) Shri Prasad Paranjape, Advocate for applicant Shri D Nagvenkar, Addl. Commissioner (AR) for the respondent ORDER M/s Larsen Toubro Grahak Sahakari Sansthan Maryadit had challenged orders-in-appeal no. 31/ST/SB/2011-12 dated 28 th February 2012 of Commissioner (TAR), Mumbai and no. 11/ST/RN/ CMR/MII/13-14 dated 31 st December 2013 of Commissioner of Central Excise, Mumbai-II holding them liable to tax for providing 'outdoor catering service' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmissions made during the hearing. 3. According to Learned Counsel, their contention that, in the event of confirmation of liability to tax, the applicant was entitled to abatement was not considered by the Tribunal while upholding the demands in the impugned orders in entirety. Undoubtedly, applicant as provider of taxable service is entitled to abatement as prescribed in notification no. 1/2006-ST dated 1 st March 2006. It is seen from the impugned orders that the demands relating to April 2011 to March 2012 had been netted after abatement before determining duty liability while the confirmed demands for the earlier period had not. As our order did not consider this aspect, it is only proper that it should be done now. 4. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... service tax or erroneous refund, as determined under sub-section (2) of Section 73, shall also be liable to pay a penalty, in addition to such service tax and interest thereon, if any, payable by him, which shall not be less than, but which shall not exceed twice the amount of service tax so not levied or paid or short levied or short paid or erroneously refunded : 17. Before the provisions of Section 78 can be invoked, there has to be a case of (i) fraud; or (ii) collusion; or (iii) wilful misstatement; or (iv) suppression of facts; or (v) contravention with intent to evade the payment of Service Tax. In the present case, there has been no discussion in the judgment of the CESTAT on whether the fundamental conditions for the impositi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Reliance was placed on the decision in Larsen Toubro Ltd v. Commissioner of Central Excise, Pune-II [2007 (211) ELT 513 (SC)]. we do not believe that the circumstances present in the case decided upon by the Hon'ble Supreme Court is relevant to the present proceedings because the appellant has been rendering the service for long and also happens to be a co-operative society .which could not have been unaware of the legal provisions of taxation. It cannot also claim to have lacked knowledge inasmuch as M/s Larsen Toubro is also one of the members of the society. We find that the appellant has been given the benefit of abatement in the computation of the tax. Consequently, we find no reason to interfere with the impugned order. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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