TMI Blog2023 (6) TMI 470X X X X Extracts X X X X X X X X Extracts X X X X ..... issue involves interpretation of law, the claim of the Revenue is that the appellants having not registered themselves; having not paid applicable service tax have suppressed material facts before the Department. The appellants are not contesting the applicability of service tax to them. However, they dispute the invocation of extended period; quantum of duty confirmed and penalty imposed. Under these circumstances and in view of the facts of the case, it is found that the extended period is rightly invoked relying on M/S VIDARBHA CRICKET ASSOCIATION VERSUS COMMISSIONER OF CENTRAL EXCISE [ 2014 (1) TMI 204 - CESTAT MUMBAI (LB)] and SHREE GURUKRUPA CONSTRUCTION COMPANY VERSUS COMMISSIONER OF CENTRAL EXCISE ST, RAJKOT [ 2019 (8) TMI 323 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith interest - All penalties are, however, set aside - appeal allowed in part. - Service Tax Appeal No. 537 of 2011 Service Tax Appeal No. 538 of 2011 - FINAL ORDER Nos. 60161-60162/2023 - Dated:- 9-6-2023 - HON BLE Mr. S. S. GARG , MEMBER ( JUDICIAL ) And HON BLE Mr. P. ANJANI KUMAR , MEMBER ( TECHNICAL ) Shri Sudhir Malhotra , Advocate for the Appellant Smt. Shivani, Authorised Representative for the Respondent ORDER Per : P. ANJANI KUMAR The appellants, M/s Lakshya International Private Limited (ST/537/2011) and M/s G.D. Tools and Forgings (ST/538/2011) are engaged in manufacture and exports of leather tool bags and polyester bags. Both the appellants have been paying the overseas commission at an agree ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice dated 09.04.2009was issued seeking to confirm service tax of Rs.2,45,408/- along with interest; seeking to appropriate the service tax of Rs.1,23,534/- paid by the appellants on 07.11.2008 and 24.11.2008; proposing to impose penalties under Sections 76, 77 78. The Original Authority vide order dated 15.06.2010 set aside service tax demand of Rs.24,794/-; confirmed service tax demand of Rs.2,20,834/- for the period 09.07.2004 to 30.09.2008; imposed equal penalty under Section 78 and penalty of Rs.1000 per day under Section 77 and refrained from imposing penalty under Section 76. On appeals filed by the appellant and the Department (for not imposing penalty under both Sections 76 78), Commissioner (Appeals) set aside the demand of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s CCE- 2007 (8) STR 502 (T) Learned Adjudicating Authority erred in invoking extended period of limitation as there was no mis-statement, concealment or suppression of facts. He relies upon: (i) CST Vs Naresh Kumar Company Pvt. Ltd.- 2022 (67) GSTL 324 (Cal.). (ii) Northern Operating Systems Pvt. Ltd.- 2022 (61) GSTL 129 (SC). (iii) Uniworth Textiles Pvt. Ltd.- 2013 (288) ELT 161 (SC). (iv) Cosmic Dye Chemical- 1995 (75) ELT 721 (SC). (v) K.K. Appachan- 2007 (7) STR 230 (Tri. Bang.) (vi) ChiripalPolyfilms Ltd.- 2022 (67) GSTL 454 (T) Penalty under Section 76 and Section 78 cannot be imposed together as held by Hon ble Punjab Haryana High Court in the case of Pannu Property Dealers, Ludhian ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so deposited. We find that the authorities below have accepted the contention of the appellants regarding the non-applicability of service tax to the appellants before 18.04.2006. While the appellant s claim that the extended period is not invokable as the issue involves interpretation of law, the claim of the Revenue is that the appellants having not registered themselves; having not paid applicable service tax have suppressed material facts before the Department. We find that the Original Authority observes as follows: As regards the defence put up by the Noticee against the issue of imposition of penalty, including the extended period of limitation, under the provisions invoked in the show cause notice, I am not convinced by their p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cts of the case, we find that the extended period is rightly invoked relying on Vidarbha Cricket Association- and Shree Guru Kirpa Construction Company (supra). Coming to the quantification of the duty, we find that the appellants have produced Chartered Accountant certificates regarding the commissions paid to overseas agents for the period before and after 18.04.2006. We find that the lower authorities have simply relied on the figures proposed in the show cause notice and have not discussed at all the Chartered Accountant certificates. They have not also contradicted the said certificates. We are of the considered opinion that certificates given by Experts in the respective fields cannot be ignored without cogent reasons. Therefore, we f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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