TMI Blog2021 (10) TMI 535X X X X Extracts X X X X X X X X Extracts X X X X ..... well as the Tribunal have also arrived at a conclusion that the respondent-Bank has accounted service tax and education cess separately while making cash payments. The material on record does not indicate that the respondent-Bank has indulged in any one of the ingredients contemplated under Section 73 of the Finance Act, 1994 and therefore, the proviso to Section 73 of the Act would not be available to the revenue. The Commissioner was of the view that there was a technical lapse on the part of the respondent Bank - The service tax was implemented in the month of September 2005 and therefore, the material on record clearly indicates that there was no deliberate intent to evade tax and any lapse on the part of the respondent-Bank was rig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as prescribed and therefore, the respondent-Bank was not in a position to submit the returns. However, the respondent-Bank claims that details were furnished after collecting the same from various branches. The Commissioner however alleging that the respondent-Bank has availed irregular credit and has failed to submit half yearly returns in time and also on the ground that service tax was not paid in time, issued a show cause notice and proposed to levy penalty under Sections 76, 77 and 78 of the Finance Act, 1994.The respondent-Bank submitted a detailed reply to the show cause notice. The Commissioner having considered the rival contentions, passed an order on 17.10.2006 allowing part of the CENVAT credit and disallowing balance of the cre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had availed CENVAT credit on the input services received prior to 10.09.2004 in respect of which there was no claim before the original adjudicating authority. He would contend that since the respondent-Bank obtained registration with effect from 10.09.2004 and therefore, the respondent-Bank was not eligible to take the CENVAT credit on the services received prior to service tax received on the output services. 7. Per contra, learned counsel appearing for the respondent-Bank would however counter the contentions raised by the appellant herein. He would submit to this Court that the respondent-Bank is a public sector bank and has branches all over India. Service tax was implemented with effect from 10.09.2004. He would submit to this Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which has not been levied or paid or which has been short-levied or short-paid or the person to whom such tax refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice : PROVIDED that where any service tax has not been levied or paid or has been short-levied or short-paid or erroneously refunded by reason of - (a) fraud; or (b) collusion; or (c) wilful mis-statement; or (d) suppression of facts; or (e) contravention of any of the provisions of this Chapter or of the rules made thereunder with intent to evade payment of service tax, by the person chargeable with the service tax or his agent, the provisions of this sub-section shall have effect, as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts contemplated under Section 73 of the Finance Act, 1994 and therefore, the proviso to Section 73 of the Act would not be available to the revenue. The Commissioner was of the view that there was a technical lapse on the part of the respondent Bank. The proviso of Section 73 of the Finance Act allows the revenue to raise a demand within extended period only where assessee indulges in fraud, willful misstatement or suppression of facts or contravention of provisions of the Act with intend to evade payment of duty. The service tax was implemented in the month of September 2005 and therefore, the material on record clearly indicates that there was no deliberate intent to evade tax and any lapse on the part of the respondent-Bank was rightly ..... X X X X Extracts X X X X X X X X Extracts X X X X
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