TMI Blog2009 (2) TMI 130X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner’s order imposing penalty on the appellant under sections 76, 77 and 78 of the Act is not sustainable and the same is set aside. The appeal is allowed. - ST/17 OF 2007-CUS.-BR - ST/86 OF 2009 - Dated:- 17-2-2009 - S.S. KANG, VICE PRESIDENT and RAKESH KUMAR, TECHNICAL MEMBER Ravi Raghavan for the Appellant. AK. Madaan for the Respondent. ORDER Rakesh Kumar, Technical Member. - This is an appeal against Order-in Original No. 38/RK/06, dated 12-10-2006 passed by the Commissioner, Service Tax, Delhi by which the Commissioner holding that the appellant, during the period of dispute, i.e., from October, 2004 to March, 2005, had received taxable Intellectual Property Service , as defined under section 65(55b) r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bt as to whether they were liable for payment of service tax or not, that it is only recently, the Larger Bench of the Tribunal in the case of Hindustan Zinc Ltd. v. CCE [2009] 18 STT 67 (New Delhi-CESTAT) has held that the service receiver in India receiving taxable service from an Offshore Service Provider not having any office or establishment in India, would be liable to pay the service tax with effect from 1-1-2005, the date on which the Government issued the Notification under section 68(2) of the Finance Act notifying the taxable services received from an Offshore Service Provider by the service receiver in India, as the services in respect of which it is the service receiver in India who would be liable to pay the service tax, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame taxable under clause (zzr) in section 65(105) of the Finance Act, 1994 effective from 10-9-2004. There is no dispute about the fact that the appellant having manufacturing Units at GIDC, Makarpura, Maneja Vadodara and at Pollachi Road, Coimbatore and having their Corporate Office at Chandiwala Estate, Maa Anand Mai Marg, Kalkaji, New Delhi, had received the taxable IPR Service from an Offshore company M/s. Alstom Holdings Project, Paris, which does not have any office or business establishment in India. The appellant have not disputed their service tax liability and have paid the entire amount along with interest on 8-10-2005 i.e., even before the issue of show-cause notice. The point of dispute is as to whether in these circumstances t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act. 4. In view of the above, we are of the view that the provisions of section 80 of the Act are applicable to the facts of this case and therefore, no penalty should have been imposed on the appellant. Moreover, when the appellant have discharged tax liability from October, 2004 to March, 2005 period along with interest, while in view of Tribunal's Judgment in case of Hindustan Zinc Ltd. (supra), they were liable to pay the tax only with effect from 1-1-2005, it would be illogical to impose penalties on them under sections 76, 77 and 78. In view of these circumstances, we hold that the Commissioner's order imposing penalty on the appellant under sections 76, 77 and 78 of the Act is not sustainable and the same is set asi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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