TMI Blog2019 (3) TMI 1433X X X X Extracts X X X X X X X X Extracts X X X X ..... as to attract the ingredients of invocation of extended period of limitation - the imposition of penalty under Section 78 on the amounts under Manpower Recruitment or Supply Agency Service and Business Auxiliary Service are unwarranted and requires to be set aside. Time limitation in respect of the TDS amount - Held that:- No positive act of suppression has been adduced by the Department. Further, as per records, the appellant had not discharged the service tax on the TDS amount for the reason that the bills with respect to this amount were pending for more than five years. Taking all these facts into consideration, the demand of service tax on the TDS amount is time-barred - The demand under this category is therefore set aside on the g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... penalty under Sections 77 and 78 of the Finance Act, 1994. After due process of law, the Original Authority confirmed the demand, interest and imposed equal penalty under Section 78 as well as penalty of ₹ 5,000/- under Section 77 of the Act ibid. The amounts already paid by the appellant were appropriated. In appeal, the Commissioner (Appeals) vide impugned Order dated 28.08.2012 upheld the same. Hence, this appeal. 3.1 On behalf of the appellant, Ld. Advocate Ms. Amrutha Arvind appeared and argued the matter. She submitted that the appellant had paid up the entire demand under Manpower Recruitment or Supply Agency Service as well as Business Auxiliary Service much before the issuance of the Show Cause Notice; that service tax alo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 1994, the penalties imposed are unwarranted and prayed that the same may be set side. Further, that the Department has not adduced any evidence to establish that there is any suppression of facts with the intention to evade payment of service tax on the part of the appellant. 4.1 Ld. AR Ms. T. Usha Devi appearing on behalf of the respondent supported the findings in the impugned Order. She submitted that the appellant has paid up the service tax only after the interference from the Department. They have not paid the TDS amount even though the Department has pointed out the same. The reason that the delay is due to financial difficulties cannot be accepted. 4.2 The appellant has neither filed returns nor discharged the service tax l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the Department. Further, as per records, we find that the appellant had not discharged the service tax on the TDS amount for the reason that the bills with respect to this amount were pending for more than five years. Taking all these facts into consideration, we are of the opinion that the demand of service tax on the TDS amount is time-barred. The demand under this category is therefore set aside on the ground of limitation. 8. From the foregoing, the impugned Order is modified to the extent of setting aside the penalty with respect to Manpower Recruitment or Supply Agency Service and Business Auxiliary Service. The demand for non-inclusion of TDS amount is set aside on the ground of limitation. 9. The appeal is partly allowed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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