TMI Blog2019 (1) TMI 779X X X X Extracts X X X X X X X X Extracts X X X X ..... to double taxation. There is no evidence of centralized registration being produced by the appellant. Also, the documents tendered are insufficient to prove that Kolkata office has discharged the liability of Jaipur office as has also been observed by the adjudicating authorities below. The Chartered Accountant’s Certificate shows much higher an amount of freight charges for Kolkata office only then the amount shown by the appellant qua freight charge of Kolkata as well as Jaipur office. Penalty - Held that:- The appellants certainly, cannot be alleged of committing an act of non payment of service tax by reason of fraud, collusion or any wilful mis-statement or suppression of facts or contravention of any of the provisions of this C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not produce copy of centralized registration or other evidence to show that service tax on GTA pertaining to Jaipur Branch has been paid by their Head office. Hence, SCN dated 20.01.2011 was issued calling upon as to why :- (i) Service Tax amounting to ₹ 14,11,306/- (Service Tax 13,70,200/-, Ed. Cess ₹ 27,405/-, SH Edu Cess ₹ 13,701/-) not paid by them should not be recovered alongwith interest from them under proviso to Section 73(1) and 75 of the Finance Act, 1994. (ii) Penalty should not be imposed upon them in terms of the provision of Section 76, 77 78 of the Finance Act, 1994 for contravention of the provisions of Section 67, 68, 69 70 of the Finance Act, 1994 and Rule 4,6 7 of the Service Tax Rules, 199 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 09 is time barred, illegal and untenable especially when the appellants were always under a bonafide belief that once service tax has been deposited by the head office the branch is not required to deposit service tax. Therefore, no malafides can be attributed on their part. Commissioner of Central Excise, Hyderabad Vs Chemphar Drugs and Liniments 1989 (40) ELT 276 (S.C.) is relied upon. For the same reason no question of interest on penalty arises. Sre Venkateswara Hi-Tech Machinery Vs. Commissioner of Central Excise Coimbatore 2007 (6) STR 139 (Tri. Chennai) is relied upon. 4. Ld. DR, per contra, has justified the Order under challenge and has prayed for dismissal of Appeal. 5. After hearing and perusing the record, I observe th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elow. The Chartered Accountant s Certificate shows much higher an amount of freight charges for Kolkata office only then the amount shown by the appellant qua freight charge of Kolkata as well as Jaipur office. Thus, I observe no infirmity in the Order of the adjudicating authority below as far as confirmation of impugned demand is concerned. Now coming to the aspect of imposition of penalty, it is observed that from the perusal of the documents showing details of deposit of service tax and interest thereon during the period 2007-08, 2008-09 and 2009-10 it is found that even though the service tax a amount of ₹ 14,11,306/- had been demanded from the appellants they have already deposited service tax for an amount of ₹ 22,01,1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... them to make payment and not to harass and initiate proceedings against persons who are paying tax with interest for delayed payment As per Section 73(3) of Finance Act, 1994 no notice shall be served against person who have paid with interest If notices are issued contrary to section, the person to be punished is the person who has issued notice and the person to whom it is issued. [paras 3, 4] 6. Finally coming to the issue of availing cenvat credit by the appellants, I am of the opinion that once there is no proof of payment of service tax by appellant question of entitlement of cenvat credit does not arise at all. 7. In view of above discussion, it is held that appellant could not have proved that the liability towards GTA ..... X X X X Extracts X X X X X X X X Extracts X X X X
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