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TMI Blog2016 (8) TMI 448X X X X Extracts X X X X X X X X Extracts X X X X ..... cause notice dated 08.10.12 that there was suppression of material facts is not tenable in Law. Decided partly in favor of assessee. - ST/59670/13 & 50752, 51100/15 (DB) - Final Order No. 70274-70276/2016 - Dated:- 1-6-2016 - Mr. Anil Choudhary, Member (Judicial) and Mr. Anil G. Shakkarwar, Member (Technical) Shri R.K. Tewari, Advocate and K.S. Gupta, Consultant for assessee Shri Rajev Ranjan, Joint Commissioner (AR), for Revenue ORDER These are two miscellaneous applications and three Appeals. 2. Miscellaneous application No. ST/Misc/51242/14 was filed in appeal No. ST/59 670/13 (DB), requesting for early hearing of the Appeal and miscellaneous application No. ST/Misc/51359/15 was filed in the same appeal, requ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missioning and Installation Service. Assessee have filed the statutory returns and paid the admitted tax as per returns. During the period from June, 2005 to March, 2010 VSE provided taxable Services to M/s Hindalco Industries Ltd. VSE was issued with a show cause notice dated 06.10.2010 demanding Service Tax of ₹ 5,87,899/- on amount of Bonus and PF contribution of ₹ 50,79,855/- received by VSE from M/s Hindalco Industries Ltd. during the period from June, 2005 to March, 2010 for deploying manpower. The said show cause notice was adjudicated through Order-in-Original dated 11/08/2011 wherein the said demand of Service Tax was confirmed equal penalty under Section 78 of the Finance Act, 1944 and penalty of ₹ 5000/- under S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terpretation and subjudice penalty under Section 78 of the Finance Act, may be waived. The Revenue contented that the impugned order is just and fair. 8. Appeal No. ST/50752/15 was filed by VSE against Order-in- Appeal No.74/ST/ALLD/2014 dated 04/12/14. VSE were issued with a show cause notice dated 08.10.12 alleging that during the period from 2007-08 to 2011-12 VSE received total consideration of ₹ 10,13,34,280/- from M/s Hindalco Industries Ltd. who is the same service recipient dealt that in appeal in the foregoing paragraph and short paid Service Tax of ₹ 26,93,163/-. The allegation in the show cause notice is that on the gross receipt of ₹ 10,13,34,280/- received from service recipient VSE should have paid the Ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... demand of extended period from 2005-06 to 2009- 10 was already raised through said show cause notice dated 06.10.10. Therefore, as ruled by Hon'ble Supreme Court in the said case of Nizam Sugar Factory the entire show cause notice at 08.10.12 is to be treated as bad in Law and demand and penalty needs to be dropped. 9. Learned A.R. reiterated the findings in Order-in-Appeal. 10. Appeal No. ST/51100/15 is filed by commissioner of central Excise, Allahabad against order-in-Appeal No.74/ST/ALLD/2014 dated 04/12/14 which is also impugned order, in the above referred appeal No. ST/50752/15. commissioner of central Excise, Allahabad has contended that appellate authority has committed a mistake by reducing the amount of tax liable to c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ultants and Technocrats Pvt. Ltd. referred to in forgoing paras the issue of valuation in Service Tax matters was issue of interpretation of statute under litigation. Therefore, we set aside the penalty of ₹ 5,87,899/- imposed under section 78 of the Finance Act, 1994. In respect of appeal No. ST/50752/15, we find that the show cause notice dated 08.10.12 was issued on the same set of facts for the period from 2007-08 to 2011-12. The facts of the case were known to the department and on the basis of facts show cause notice dated 06.10.10 was issued. Therefore, contention in the show cause notice dated 08.10.12 that there was suppression of material facts is not tenable in Law. The Hon ble Supreme Court in the above stated case of Niza ..... X X X X Extracts X X X X X X X X Extracts X X X X
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