TMI Blog2018 (8) TMI 1280X X X X Extracts X X X X X X X X Extracts X X X X ..... ates that the service tax of audit is of the Branch accounts and they had pointed out same discrepancy of non-payment of tax on foreign exchange remuneration and income received from the Government transactions, syndication fees, etc. These details indicate that the appellant assessee had in fact produced all the records before the authorities to check and come to a conclusion, whether the tax liability was correctly discharged or otherwise. There are strong force and contentions raised by the Learned Counsel that though they have not contested the tax liability before the Adjudicating Authority they had taken the point of limitation for setting aside the penalties so imposed, this is an acceptable point as, if the tax liability itself c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the confirmation of demand and appropriation of the amounts so paid by the appellant/assessee. Appellant/assessee contested the matter on limitation and argued that penalty should not be imposed as the short payment for the period involved was due to calculation error. The Adjudicating Authority did not agree with the contentions raised, confirmed the demands raised along with interest appropriated the amounts so paid and the imposed penalty of ₹ 56 lakhs under Section 78 of the Finance Act, 1994 and also penalty under Section 76 of the Finance Act, 1994. Appellant/assessee is aggrieved by the said order and is in appeal, in appeal No. ST/407/2009, Revenue is aggrieved by the impugned order and is in appeal, in appeal No. ST/403/2009 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal in the case of Trans Engineers India Pvt. Ltd., [2015 (40) STR (490)] for the proposition that extended period cannot be invoked based upon the second audit report for the period in question, also relies upon Garrison Polysacks P. Ltd., [2013 (292) ELT 513] and Suvikram Plastex (P) Ltd., [2008 (225) ELT 282] for the same proposition. 4. Learned Departmental Representative submits that as regards the invocation of extended period and demand thereof, it was correctly done so. It is his further submission that because the audit party have visited does not being that the audit parties to give an opportunity to inspect actual inspect of duty paid nature hence the mere fact audit was conducted in the records that there was suppression ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich they are to be maintained are left to the assessee and error in calculating the tax liability has to be construed as willful mis-statement and suppression with intention to evade payment of service tax that because audit of the records has taken place does not mean that the intention to evade duty was nullified and it cannot be presumed that this in itself would justified for non-invoking of longer period. 8. On careful considerations submissions and we do find audit of records, took place multiple times, Lower Authorities are noting and recording the audit of the records of the appellant assessee to place on 13.08.2007, 17.08.2007 again in September, 2008. The copy of the audit report filed by the appellant in appeal memorandum cle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the question of penalty does not arise. In view of the authoritative judicial pronouncements, the penalty imposed on the appellant assessee are liable to be set aside; as also on the ground that the appellant assessee has not been able to discharge the tax liability during the period in question due to clerical error is an accepted position, hence this calls for setting aside the penalty of Section 80 of the Finance Act, 1994 invoking the provisions of Section 80 of the Finance Act, 1994. We set aside the penalties imposed on the appellant assessee for the State Bank of India. 9. As regards the appeal filed by the Revenue, since we have invoking the provisions of Section 80 for setting aside the penalties imposed an acceptable justifiabl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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