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TMI Blog2017 (9) TMI 235X X X X Extracts X X X X X X X X Extracts X X X X ..... al payment made to foreign service provider. Therefore, there was no intention to evade payment of service tax. When the suppression of fact is not established under sub-section (4) of Section 73 will not get attracted - it can be seen that there was a clear intention of the appellant to opt for the provision of Section 73 (3) of the Finance Act, 1994 - The appellant paid the service tax along with interest and submitted the above letter much before the issuance of the show-cause notice - SCN not valid - appeal allowed - decided in favor of appellant. - ST/847/12 - A/89365/17/STB - Dated:- 31-8-2017 - Mr. Ramesh Nair, Member (Judicial) And Mr. Raju, Member (Technical) Shri.M.P. Joshi, Advocate for appellant Shri.M.K.Sarangi, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otice was adjudicated wherein the demand of service tax, interest and penalty under Sections 76 78 were confirmed. Being aggrieved by the order-in-original, the appellant filed the present appeal. Therefore, the appellants are before us. 2. Shri M.P. Joshi, learned Counsel appearing on behalf of the appellant at the outset submits that though the appeal was filed challenging the entire confirmation of demand of service tax and penalties imposed related thereto, but since they have paid the entire amount of service tax and availed the Cenvat Credit of the same they are not contesting the demand of service tax. He submits that in the entire case there is no suppression of fact on the part of the appellant for the reason that the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... following decisions: a) Endeka Ceramics India Pvt. Ltd. - 2013 (31) STR 355 (Tri-Ahmed) b) Sify Technologies Ltd. - 2015 (39) STR 261 (Tri-Chennai) c) Jin Irrigation Systems Ltd. - 2015 (40) STR 752 (Tri-Mumbai) d) Intervalve (I) Ltd. - 2015 (40) STR 717 (Tri-Mum) 2.1 He further submits that the appellants have paid the service tax along with interest before issuance of the show-cause notice and the option under Section 73 (3) was intimated to the department vide their letter dated 02/07/2009. Therefore, the appellant was not supposed to be served with the show-cause notice as per provisions of Section 73 (3) of the Finance Act, 1994. 3. On the other hand Shri M.K. Sarangi, learned Additional Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant was not inclined to pay the service tax at all in respect of the amount payable to the foreign service provider for which the provision was made in the books of accounts, the appellant was otherwise making payment of service tax on the actual payment made to foreign service provider. Therefore, there was no intention to evade payment of service tax. The submission of the appellant that the entire exercise is revenue neutral was found force. Since the service tax which was payable was available as a Cenvat Credit to the appellants themselves instantly after making the payment of service tax. There was neither loss or gain to the appellant as well as to the revenue, as the appellant could have reduced the duty payment liability ..... X X X X Extracts X X X X X X X X Extracts X X X X
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