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TMI Blog2016 (7) TMI 1126X X X X Extracts X X X X X X X X Extracts X X X X ..... payable. On being pointed out by the audit, the appellant got themselves registered with service tax department under the category of Renting of Immoveable Property Service and paid the service tax through Cenvat Credit account available on that day along with interest vide GAR 7 Challan. The department issued a show cause notice proposing the demand of service tax through cash as against the payment of service tax of Rs. 1,37,104/- paid from Cenvat credit account under Section 73(1) read with Section 66,67,68 of the Finance Act, 1994 and Rule 3(4) of Cenvat Credit Rules, 2004, interest under Section 75, and penalties under Sections 76,77 & 78 were also proposed in the show cause notice. The adjudicating authority confirmed the demand of Rs. 1,37,104/- under Section 73 penalties were also imposed of equal amount of Rs. 1,37,104/- under Section 78 and Rs. 10,000/- under Section 77 of the Finance Act. However, the adjudicating authority refrained from imposing any penalty under Section 76. Against adjudication order, the appellant has filed the appeal in respect of confirmation of demand, penalties under Section 77 & 78, the department also filed appeal against non-imposition of pen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... date of payment even though demand pertains to previous period. In this regard, he relied upon the Board s clarification issue vide Circular No. 962/05//2012-CX.8 dt. 28.3.2012. He further submits that the payment of service tax was made on the pursuance of audit officer as per their audit para-2 dt. 25.11.2010. He referred to the said audit para wherein the demand of service tax on renting of immoveable property was directed to be paid under Section 73 alongwith interest under Section 75 of the Finance Act, 1994. He submits that even the audit officer also considered this payment under Section 73. Therefore Rule 3(4) of Cenvat Credit Rules has no application as per the Board Circular dt. 28.3.2012. As regard penalties under Section 76,77 & 78 imposed by the adjudicating authority as well as the Commissioner (Appeals) he submits that as per the amended Section 80(2) of the Finance Act, 2012, it was provided that if the service tax on the renting of immoveable property is paid within six months from the date on which the Finance Bill 2012 receives the assent of the Presidents, no penalty shall be imposed under Section 76,77 or 78. He submits that in the present case the appellant ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : January 2009 to March 2010 Date of Audit : 25.11.2010 Para No. 02 : Payment of Service Tax on Renting of Immovable Property M/s. Bombay well Print Inks Pvt. Ltd. C-93/2, MIDC, Hingna Road, Nagpur are engaged in manufacture of Inks, falling under Sub Heading having Central Excise registration ECC No. AAACB6602JXM001 and clear the goods to the customer. They are also registered with Service Tax having Registration No. AAACB6602JST001 for GTA. They are also availing Cenvat Credit on Inputs. Capital goods and Input services under Cenvat Credit Rules, 2004. During the course of Audit the Balance Sheet Year 2008-09, 2009-10 of the assessee in schedule "N' - Other Income it is observed that the assessee has received certain amount towards rent i.e. Rent Received. Further scrutiny of the document i.e. Ledger accounts and Rent Agreement it is observed that they have rented their premises to the following parties for Business & Commerce purpose. Renting of Immovable property for furtherance of business or commerce introduced with affect from 01.06.2007 and the activity falls under the said services. The assessee has intentionally not taken Service Registration under this cate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yment of arrears from Cenvat credit earned at a later date Circular No. 962/05/2012-CX. 8, dated 28-3-2012 F.No. 267/96/2009-CX8 Government of India Ministry of Finance (Department of Revenue) Central Board of Excise & Customs, New Delhi Subject : Payment of arrears from Cenvat Credit earned at a later date. Reference was received from the field formation seeking clarification on the issue as to whether the arrears of duty can be paid by utilizing the cenvat credit which has accrued subsequent to the period to which the arrears pertained. Such clarification has been sought in view of first proviso to rule 3(4) of the Cenvat Credit Rules, 2004. As per this proviso, while paying duty of excise or service tax, as the case may be, the cenvat credit shall be utilized only to the extent such credit is available on the last day of the month or quarter, as the case may be, for payment of duty or tax relating to that month or the quarter, as the case may be." 2. Doubts have been raised whether these restrictions will be applicable to duty payable in terms of Section 11A or duty paid after due date in terms of rule 8 of the Central Excise Rules, 2002. 3. The matter has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... posed under Sections 76,77 & 78. I find that there is a specific provision for waiver of penalty was made in respect of Renting of Immoveable Property service under Section 80(2) the same is reproduced below: "80. Penalty not to be imposed in certain cases. 2(1) Notwithstanding anything contained in the provisions of section 76 3[section 77 or 4[first proviso to sub- section (1) of section 78]], no penalty shall be imposable on the assessee for any failure referred to in said provisions, if the assessee proves that there was reasonable cause for the said failure. 5" (2) Notwithstanding anything contained in the provisions of section 76 or section 77 or section 78, no penalty shall be imposable for failure to pay service tax payable, as on the 6th day of March, 2012, on the taxable service referred to in sub-clause (zzzz) of clause (105) of section 65, subject to the condition that the amount of service tax along with interest is paid in full within a period of six months from the date on which the Finance Bill, 2012 receives the assent of the President."; From the above sub-section (2) of Section 80, no penalty shall be imposable for failure to pay service tax payable in ..... 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