TMI Blog2019 (1) TMI 69X X X X Extracts X X X X X X X X Extracts X X X X ..... ue of SCN and therefore the issuance of SCN itself, for demanding penalty under Section 78, is not warranted under law - further, the perusal of the works contract clearly shows that the contract value is not inclusive of Service Tax because nowhere in the works contract, it is stated that the contract value is inclusive of Service Tax. To this extent, the finding of the Original Authority and App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssued to the appellant proposing to demand and recovery of Service Tax of ₹ 6,96,431/- along with interest and also imposed equal amount of penalty under Section 78 of the Finance Act. Aggrieved by the said order the appellant filed appeal before the Commissioner on the ground that he has not collected the Service Tax from his customers for the period from 2013-15. The appellant has paid the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... turn. During the investigation, it was found that he has not paid the Service Tax and thereafter the appellant paid the Service Tax along with interest and late fee before the issuance of SCN. He further submitted that once the appellant has paid the Service Tax along with interest before the issue of SCN then the Department should not have issued the SCN as is provided under Section 73(3) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T., Bangalore Vs. C Ahead Info technologies India Pvt. Ltd. , 2017 (47) STR 125 (Kar.). 5. On the other hand, the learned AR defended the impugned order and submitted that the penalty under Section 78 has rightly been imposed as the appellants have suppressed the material fact with intent to evade payment of tax. He further submitted that as per the Original Authority order, it is observed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant squarely covers the case of the appellant. Further, I note that the perusal of the works contract clearly shows that the contract value is not inclusive of Service Tax because nowhere in the works contract, it is stated that the contract value is inclusive of Service Tax. To this extent, the finding of the Original Authority and Appellate Authority is factually incorrect. Therefore, keep ..... X X X X Extracts X X X X X X X X Extracts X X X X
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