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TMI Blog2015 (2) TMI 348X X X X Extracts X X X X X X X X Extracts X X X X ..... s available to their sister unit. In such a situation of revenue neutrality, mala fide intention cannot be proved. Therefore, it was held that extended period is not invokable. Appellant has paid service tax along with interest on pointing out by the Revenue during the course of investigation and the appellant is entitled to Cenvat credit of serviced tax paid; in that situation intent to evade duty stands not proved. Consequently, the appellant is entitled for the benefit of Section 73 (3) of the Finance Act, 1994, as held by the Hon'ble Gujarat High Court in the case of Tejas Agency (2014 (8) TMI 151 - GUJARAT HIGH COURT) wherein it was held that it is not a case of non-payment of service tax with intent to evade the payment of same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pter-V of the Finance Act, 1994. The appellant paid certain amounts towards the service provided by non-resident service providers which is subject to Service Tax under Section 66A of the Finance Act, 1994. During the course of investigation, it was pointed out to the appellant that they are required to pay Service Tax on the said activity which the appellant paid before issuance of the show cause notice along with interest and taken the Cenvat Credit of the same immediately. Later on, a show cause notice came to be issued for imposition of penalty under Section 76, 77 78 of the Finance Act, 1994. The appellant is challenging the imposition of penalty by the adjudicating authority before us. 3. The Ld. Consultant appeared on behalf of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) E.L.T. 628 (Guj.), Commissioner Vs. Indeos ABS Ltd. 2011 (267) E.L.T. A155 (S.C.). He also relied on the decision of Commissioner of Service Tax, Bangalore Vs. Master Kleen 2012 (25) S.T.R. 439 (Kar)., C.C.E S.T. LTU, Bangalore vs. Adecco Flexione Workforce Solutions Ltd. 2012 (26) S.T.R. 3 (Kar.), Commissioner vs. Tejas Agency 2014 (34) STR 803 (Guj.). 4. On the other hand, the learned A.R. submits that if investigation was not done the non-payment of service tax would not have been detected and the provisions of law are very clear, therefore intention of the appellant was clearly to evade payment of service tax. Therefore, the adjudicating authority has rightly imposed the penalty on the appellant. 5. Heard both sides and consid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon'ble Apex Court. Further in the case of Indian Oil Corporation Ltd. (supra) where the appellant after taking Cenvat credit on various inputs cleared as such to their other units indicated the duty payable. However, neither the duty was actually paid and nor the issue of such invoices was declared to the department, in that case it was held by this Tribunal that whatever duty they were to pay the credit of same is available to their sister unit. In such a situation of revenue neutrality, mala fide intention cannot be proved. Therefore, it was held that extended period is not invokable. Further in the case of Harbans Lal Malhotra Sons 2002 (141) ELT 521 (Tri. Del.) it was held that the appellant are under a revenue neutral situation, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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