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TMI Blog2005 (6) TMI 543X X X X Extracts X X X X X X X X Extracts X X X X ..... the Respondent. ORDER The appellants in these cases are providers of cell phone service. Under the impugned orders, there are demands for service tax on the cell phone service and penalties under Sections 76 and 78 of the Finance Act, 1994 and also demand for interest. 2. We have perused the records and heard both sides. 3. The appellants have no case in regard to service tax as tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espect of the amount collected for the telephone service. Failure to pay tax was limited to amounts charged for the SIM card and activation charge. It is being submitted that these charges were considered as sale of goods which attracted sales tax. The appellants were thus paying sales tax. They were under the impression that service tax by the very nature of the tax was on service and cannot fall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ession of value of service provided with intent to evade service tax and thus, penalty under Section 78 is justified. 6. We find merit in the contention of the appellant with regard to penalty. The facts and circumstances leading to the dispute lend to that conclusion only. The appellants are registered and were paying service tax in regard to fees for providing telecommunication service. The s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olume 130) 2003]. It is clear from these circumstances that the issue was not free from doubt and the finding of suppression of value by the appellants so as to evade service tax is not warranted. In this view of the matter, we set aside the penalties imposed and allow the appeals to that extent. The impugned order is modified to this extent. (Dictated pronounced in open Court) - - TaxTMI ..... X X X X Extracts X X X X X X X X Extracts X X X X
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