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TMI Blog2015 (10) TMI 1739X X X X Extracts X X X X X X X X Extracts X X X X ..... u/s 77 for failure to comply with the audit objections - Allegation that appellant did not furnish requisite information and documents, and did not respond to the letters. - Held that:- Department itself is not sure whether the appellant is guilty of failure to furnish information or failure to produce documents thus imposition of penalty cannot be imposed on flimsy and shaky evidence – Decided in favour of assessee. - Appeal No. ST/50467/2015-ST(SM) - Final Order No. A/52797/2015-SM(BR) - Dated:- 7-9-2015 - Sulekha Beevi CS, Member (J) For the Appellant : Shri Yogendra Aldak, Adv For the Respondent : R K Gupta, DR ORDER Per Sulekha Beevi CS Brief facts are as under: 1. The appellants are authorized dealers of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Finance Act (Rs. 200/-per day for the default of 1385 days). In appeal, the same was upheld except for reducing the penalty imposed under Rule 15 to equal amount of penalty. The appellant is thus before the Tribunal. 2. The first allegation is that appellant wrongly availed credit of ₹ 44,056/-. According to the department, the 'advertisement services' on which the credit was availed, being input service for other branches also, the appellant was entitled to avail the credit on proportionate basis only. Appellants agreed to the objections and reversed the credit on 22.05.2010. The interest of ₹ 6200/- was deposited later, after issuance of show cause notice. 3. The learned counsel for the appellants referred t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce Act, 1994. In addition to the audit objection regarding the credit availed as discussed above, the auditors had directed the jurisdictional range officer to collect figures related to GTA services for the years 2007-2008, 2008-2009, figures related to consultancy fees paid for different years and also details of rent paid by appellant to M/s. Jyotsna Suri for the years 2007-2008, 2008-2009. It is the case of the department that the Range Superintendent, Service Tax Range-I issued letters dated 30.07.2012, 6.08.2012, 17.09.2012 and 6.12.2012 asking the appellant to comply with audit objections. But that appellant did not furnish requisite information and documents, and did not respond to the letters. That though summons dated 10.01.2013 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raised by the Department. The primary adjudicating authority observed that the appellant failed to respond to letters and submit desired information and imposed penalty broadly under Section 77 (1) (c). Whereas, the first appellate authority found that appellant though supplied information vide reply letters dated 17.03.2011 and 10.07.2012 failed to submit documents and the penalty is seen to be upheld specifically under section 77 (1) (c) (ii). This shows that the department itself is not sure whether the appellant is guilty of failure to furnish information or failure to produce documents. If penalty is imposed under section 77 (1) (c) (ii), the respondents have to state specifically which document was called from the appellant. The show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that details pertained to issues different from the allegation of irregular credit availed. Therefore separate show cause notice has to be issued. The correspondences reveal that the appellant vide letter dated 17.03.2011, i.e., in reply to the audit objections has given parawise response to the objections. This has been explained further vide letter dated 10.07.2012. Though the appellant failed to reply to few letters, the explanation for failure that the appellant was under bonafide belief that necessary information was given cannot be rejected in toto. Section 80 of the Finance Act, 1994 provides that no penalty shall be imposed for any failure referred to in section 76, 77, 78 of the Act if the assessee proves that there was reasonable ..... X X X X Extracts X X X X X X X X Extracts X X X X
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