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2017 (7) TMI 992 - AT - Service TaxBusiness Auxiliary Services - It was noticed that the respondent had not amended the registration certificate to include BAS and also did not mention the same in their ST-3 returns. However, the respondent took a separate registration on 05.09.2006 in respect of BAS - Held that - at the instance of the Central Excise Officers, they paid vide cash, the entire tax alongwith interest before issuance of the Show Cause Notice. In any event, the respondent was entitled to avail CENVAT Credit and the situation is Revenue neutral - appeal dismissed - decided against Revenue.
Issues:
1. Applicability of Business Auxiliary Service (BAS) in the case. 2. Utilization of Service Tax credit by the respondent. 3. Imposition of penalties under various provisions of the Finance Act, 1994. 4. Invocation of Section 80 of the Finance Act, 1994. 5. Entitlement to CENVAT Credit. 6. Dispute regarding registration certificate and intent to evade payment of Service Tax. 7. Comparison with a similar case before the Hon'ble Karnataka High Court. Analysis: 1. The case involved the respondent engaged in manufacturing excisable goods and providing service as a commission agent under Business Auxiliary Service (BAS). The respondent availed credit on various input services related to the manufacture of final products, including BAS. The respondent had not initially included BAS in their registration certificate or ST-3 returns but later obtained a separate registration for BAS. 2. The respondent utilized Service Tax credit in their account, leading to a Show Cause Notice proposing to appropriate the tax amount, interest, and penalties under the Finance Act, 1994. The Adjudicating Authority confirmed the demand and imposed penalties under Sections 76, 77, and 78. However, the Commissioner (Appeals) set aside the penalties by invoking Section 80 of the Finance Act, 1994. 3. The Ld. A.R. for the revenue highlighted that the respondent's BAS activities came to light during enquiries based on ER-I returns. The respondent contended that they initially paid the tax from the CENVAT account and later paid the entire tax with interest before the Show Cause Notice, claiming entitlement to CENVAT Credit and asserting revenue neutrality. 4. The Commissioner (Appeals) found that the respondent acted in good faith upon becoming aware of their tax liability and promptly paid the tax and interest. Citing precedents, the penalties under Sections 76, 77, and 78 were set aside, granting the respondent the benefit of Section 80 of the Finance Act, 1994. 5. The absence of evidence that the respondent deliberately avoided obtaining a registration certificate to evade Service Tax payment was noted. The respondent promptly paid the tax upon detection and had the necessary registration certificate. A comparable decision by the Hon'ble Karnataka High Court supported the dismissal of the revenue's appeal. 6. The judgment emphasized that the respondent's proactive payment of the Service Tax upon becoming aware of their liability precluded the issuance of a show cause notice. The Tribunal's decision aligned with statutory provisions, leading to the dismissal of the revenue's appeal. 7. Ultimately, the order of the Commissioner (Appeals) was upheld, and the revenue's appeal was rejected, concluding the case. This detailed analysis covers the key issues and the reasoning behind the judgment in the case before the Appellate Tribunal CESTAT Kolkata.
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