9911796707
TMI Blog2023 (12) TMI 1065X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Rs.34,865, totally amounting to Rs. 4,40,070/- Out of this amount, the Appellant has already paid Rs. 4,05,205 along with Interest of Rs.1,30,876/- before issue of the SCN. The Appellant is disputing the penalty equal to duty imposed on this amount already paid. They are also disputing the balance tax of Rs. 34,865/-. 2. Regarding the penalty imposed under Section 78 of the Finance Act, 1994, the Appellant submits that proceedings were initiated for nonpayment of Service Tax on commission income for the period 2006-07. On being pointed out by the authorities, they have immediately deposited Service Tax of Rs.4,05,205/- along with interest of Rs.1,30,876/- on 25.02.2009 without raising any dispute. In terms of Section 73(3) of the Financ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d unconstitutional. It was only in the Finance Act, 2010 enacted on 08.05.2010, the levy was revalidated with retrospective effect. The Appellant submits that the demand was raised by invoking extended period of limitation which is legally not sustainable for the reason that the levy was in dispute during that period and there cannot be any case of any fraud or suppression with an intent to evade payment of service tax. Hence, the demand of service tax by invoking the extended period of limitation is liable to be set aside. 5. Regarding merits of the demand, the Appellant submits that the land has been used for parking of repossessed vehicles by ICICI bank, which is not in dispute. The definition of immovable property provided in Explanati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... observe that the Appellant has deposited the Service Tax of Rs.4,05,205/- along with interest of Rs.1,30,876/- on 25.02.2009 without raising any dispute. In terms of Section 73(3) of the Finance Act, 1994, where the Service Tax along with the interest is paid by the assessee on the basis of tax ascertained by the Central Excise Officer, no SCN is required to be served. We observe that this view has been held by this Tribunal in the case of M/s. National Power Engineering Company vs. Comm of CGST & C. Excise, Siliguri vide Final Order no. 76011/2023. By following the decision cited above we hold that imposition of penalty under Section 78 of the Finance Act, 1994 is not warranted in this case, accordingly, we set aside the penalty imposed un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entitled for the benefit of the exemption as provided under Clause (c) of Explanation 1 to Section 65(105) (zzzz) of the Finance Act. On perusal of the agreement, we observe that the Annexure to the agreement gives the rates payable by ICICI bank, which is reproduced below: RATE ANNEXURE COMMERCIAL VEHICLE : Rs.50/- per DayperVehicle Auto : Rs.35/ per day per Vehicle TWO WHEELER : Rs.10/- per Day per Vehicle 12. From the rate payable by ICICI bank as per the agreement mentioned above, it is evident that the land has been used for parking of the vehicles by ICICI bank. Accordingly, we hold that the Appellant are entitled for the exemption provided under Clause (c) of Explanation 1 to Section 65(105) (zzzz) of the Finance Act, which spe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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