2015 (11) TMI 656

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..... e appeal of the appellant. 2. The fact of the case is that during the course of audit of the books of account and of M/s. Ashok Leyland Limited, Gadegaon by the Central Excise Officers it was revealed that the appellant had provided management, maintenance or Repair service to M/s. Ashok Leyland Limited without paying service tax payable thereof under the finance Act, 1994. The Appellant after pointed out by the Range Officers registered as service provider under above said category of management, maintenance or repair service and after accepting their tax liability paid entire amount of service tax amounting to Rs. 4,27833/- thereafter a show cause notice dated 30/10/2011 was issued to the appellant for recovery and appropriation of the a .....

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..... by the appellant therefore I take up the matter for disposal on merit. 4. Shri. Ld. on behalf of the Revenue reiterates the findings of the impugned order. 5. After the consideration of submission made in appeal memo and submission made by Ld. A.R., I find that against adjudication order the appellant before the Commissioner(Appeals) has not pressed in respect of demand of service tax and payment thereof paid suo moto by the appellant therefore their contest from stage of the Commissioner(Appeals) was only on interest and penalties. Therefore prayer made by the appellant in their appeal memo. As regard the reduction of service tax, SSI Exemption under Notification No. 6/2005-ST cannot be considered at this stage. Now only issue to be deci .....

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..... the relevant time but after pointing out by the department immediately paid service tax that too before the issuance of show cause notice. In such a case I am of the considered view that department should not have issued the show cause notice Section 73(3) of the Finance Act, 1994, consequently no show cause notice is to be issued, no penalty can be imposed. I also carefully considered the status of the appellant who is small time service provider, major portion of service charges approx, 85 % is expenditure towards the salary, PF paid to the labourer deployed by them for providing the service therefore taking into consideration over all position of the of the appellant and their conduct, I find that the appellant has made out fit case for .....

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