TMI Blog2019 (10) TMI 414X X X X Extracts X X X X X X X X Extracts X X X X ..... to be taxable in various judgements, judicial precedent dictates that the same principal is to be respected for all times to come unless over-ruled by a larger Bench or Appellate Forum. Taxability on SWIFT charges, which has been accepted by the appellant who also discharged duty liability, is to be excluded from the purview of this discussion - However, having regard to the fact that taxability on SWIFT charges and application of reverse charge mechanism during the relevant period was in hegemony, imposition of penalty by invoking the extended period is beyond the purview of section 78 (4) unless the intention to evade payment of tax on ground of suppression etc. is established - Section 77 penalty is for not reflecting the taxable serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he period between 2006-09 and informed DGCEI regarding such payment but SCN dated 29-1-2010 was received by the appellant for recovery of equivalent penalty of ₹ 25,47,642/- under section 78 and penalty under section 77 of the Finance Act 2004. The matter was adjudicated upon. On receipt of reply to show cause, matter was adjudicated upon, such duty demand along with interest and penalty were confirmed in OIO and OIA against which appellant has come to this Tribunal for relief. 3. In the memo of appeal and during the course of hearing of appeal Learned Counsel for the appellant Mr. Parth Parikh submitted that taxability under reverse charge mechanism had been challenged by various sectors till the issue was finally settled in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommissioner (Appeals). 4. In response to such submissions, Learned Authorised Representative for respondent Department Mr. Sudhir B. Mane argued in support of the reasoning and rationality found in the order of the Commissioner (Appeals) and in placing reliance on the decision reported in Board of Control for Cricket in India v. Commissioner of Service Tax, Mumbai-I [2014-TIOL-1774-CESTAT-MUM, Air India Ltd v. Commissioner of Service tax, Delhi [2017-TIOL-3069-CESTAT-DEL], TATA Steel Ltd. v. Commissioner of Service Tax, Mumbai-I [2016 (41) S.T.R. 689 (Tri.-Mumbai)], he argued that plea of bonafide belief cannot be accepted since appellant is a large company and not new to indirect tax laws for which he sought no intervention by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome unless over-ruled by a larger Bench or Appellate Forum. Therefore, taxability on SWIFT charges, which has been accepted by the appellant who also discharged duty liability, is to be excluded from the purview of this discussion. However, having regard to the fact that taxability on SWIFT charges and application of reverse charge mechanism during the relevant period was in hegemony, imposition of penalty by invoking the extended period is beyond the purview of section 78 (4) unless the intention to evade payment of tax on ground of suppression etc. is established. Section 77 penalty is for not reflecting the taxable service in the periodic Returns. Therefore, in conformity to the findings of the Tribunal, given in the above referred dec ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
