TMI Blog2009 (1) TMI 134X X X X Extracts X X X X X X X X Extracts X X X X ..... lties u/s 76, 77 and 78 - ST/299 & 275/2008 - 1437-1438/2008 - Dated:- 2-1-2009 - Shri T.K. Jayaraman, Member (Technical) (Final Order Nos. 1437-1438/2008 dt. 2.1.2009 certified on 19.1.2009 in Appeal Nos. ST/299 275/2008) Shri Rajesh Kumar , CA for Party. Shri V.R. Gyaneshwar Rao, JDR for Department. Per T.K. Jayaraman: Both revenue and the party have filed against the impugned Order-in-Appeal No. 141/2008-ST dated 28.3.2008 passed by the Commissioner of Central Excise (Appeals-II), Bangalore. 2. I heard both sides. 3. First, I am taking up the party's appeal. The party M/s. C. Ahead Info Technologies Pvt. Ltd. (C. Ahead for short) was engaged in the business of software development and training to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accounts in-charge, new start up company and refusal by service receivers to pay Service Tax as they provide training as part of software implementation to companies who categorized it as software development. But, he adds that the same is not a sufficient reason for waiver of penalty. Moreover the adjudicating authority, inspite of the above mentioned observation in Para 3 confirmed the imposition of penalty under Section 78. There was a doubt about the levy of Service Tax on the training provided along with the software development in view of the decision of the Tribunal in the case of Nokia (I) Pvt. Ltd. Vs. CC - 2006 (1) SIR 233 (Tri.-Del.) wherein it is held that 'consulting engineer service' would also include training of personn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issue of show cause notice and it is clearly noted down in the show cause notice. Further, there is no allegation regarding evasion. Therefore, the subject show cause notice is not at all valid, hence, on this ground alone the impugned order needs to be set aside. 3.4 My attention was invited to Circular No. 137/167/2006/CX-4 dated 3.10.2007 which provides conclusion of adjudication proceedings including penalty proceedings, when the requirement under Section 73(3) is complied with. Therefore, the penalty proceedings under Section 77 and 78 should also be closed on payment of Service Tax along with interest before the issue of show cause notice, when there is no wilful suppression/fraud/collusion. On this ground also, the impugned orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g with interest, which is evident from Para 15 of the findings in the Order-in-Original dated 26.10.2007. In these circumstances, the issue is squarely covered by the provisions of Section 73 (3) which is quoted supra. From the records, it is also clear that the party did not have any intention to evade Service Tax and they were under bona tide belief that they would not be liable for the said Service Tax. In these circumstances, there is absolutely no justification for imposing penalties under Section 76, 77 and 78 of the Finance Act. Hence, I set aside all the penalties. It is made abundantly clear that the interest is leviable. Thus, the appeal of the party is allowed. 4.1 In view of the above order allowing the party's appeal, reven ..... X X X X Extracts X X X X X X X X Extracts X X X X
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