TMI Blog2021 (12) TMI 1014X X X X Extracts X X X X X X X X Extracts X X X X ..... provision of restaurant services. Thus, the Revenue s appeal to that extent is liable to be dismissed. Imposition of penalty on the amounts of Service Tax already paid by the Respondent during the course of audit before issuance of SCN - HELD THAT:- Both the lower authorities have erred in confirming the penalty as it is a settled principle that when tax is paid along with interest before issuance of SCN (other than cases of suppression or willful mis-statement), the Department cannot issue SCN in terms of section 73(3) of the Finance Act, 1994 - In the instant case of the Respondent, the Department has mechanically issued SCN alleging suppression of facts without according any reasons for such allegation. The appeal of the Revenue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and interest have already been paid by the Respondent during service tax audit and they are not disputing it any more. 3. The Ld. Advocate appearing on behalf of the Respondent states that the departmental appeal to the extent of dropping of demand of ₹ 65,82,774/- has become infructuous as the CBIC (vide CIRCULAR NO.213/3/2019-Service Tax, dated: July 05, 2019) has clarified that there is no requirement of reversal in case of Restaurant Services as below: Subject: Provisions in the Cenvat Credit Rules 2004 regarding reversal of credit- I am directed to draw your attention to the legal provisions regarding reversal of Cenvat credit in the case of services and to analyse some issues which have arisen in this context. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Revenue, reiterates the grounds of appeal and agrees to the submission made by the Ld. Advocate as regards demand under Rule 6 of the CCR, 2004 is concerned. 5. Heard both sides through video conferencing and perused the appeal records. 6. As regards the departmental appeal on the issue of reversal of Rule 6 of CCR, 2004 on the abated value of Restaurant Services by taking the same as exempted services and applying 6% on the value of exempted services so determined to raise the demand of recovery of common Cenvat credit, we find that the issue is no more res-integra in view of CBIC s CIRCULAR NO 213/3/2019-Service Tax, dated July 05, 2019 (supra) wherein it has been clarified by the board that there is no requirement of reversal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allegation. We find that the Tribunal in the case of M/s FAIRFEST MEDIA LTD vs. CGST AND EXCISE KOLKATA SOUTH, 2020-TIOL-1113-CESTAT-KOL, held as- 5. I find that the present issue involved in this appeal is no more res-integra in view of the decision of the Tribunal in the case of Bhoruka Aluminium Limited Vs. CCEx. S.Tax, Mysore reported in 2017 (51) STR 418 (Tri.Bangalore) = 2016-TIOL- 3060-CESTAT-BANG. The relevant paras of the said decision are reproduced below : 4. The learned counsel for the appellant submitted that imposition of penalty under Section 78 of the Finance Act is contravention to the provisions of Section 73(3) of the Finance Act, 1994. He further submitted that service tax along with interest has already b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Reliance Industries Ltd. v. Commissioner of Customs, Rajkot [2013 (287) E.L.T. 433 (Tri.-Ahmd.)]. 6. On the other hand, the learned AR submitted that the appellant is guilty of suppression of facts as he failed to inform the Department regarding availment of irregular Cenvat credit and, therefore, the lower authority has rightly imposed the penalty under Section 78 of the Finance Act, 1994. 7. After considering the submissions by both the parties and perusal of the provisions of Sections 73, 76 and 78 of the Finance Act, 1994 and the judgments relied upon by the appellant cited supra, I find that Section 73(3) is very clear as it says that if tax is paid along with interest before issuance of the show cause notice, then in that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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