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TMI Blog2017 (4) TMI 1283X X X X Extracts X X X X X X X X Extracts X X X X ..... gained financially since over ₹ 65 lakhs of Service Tax was already paid and Service Tax rates on both the services were the same - Slight short payment of Service Tax of ₹ 43 471/- has been attributed to accounting and calculation errors, which too stands paid by the applicant along with interest leviable thereon. No case whatsoever is made out to impose any penalty on the applicants. Such frivolous SCN should not have been issued in the first place. Immunities to the applicant are granted under Section 32K(1) of the Act as made applicable to Service Tax - decided in favor of applicant. - Settlement Application F.No.27/ST/KNA/2017-SC(MB) SA(ST)69/2017 - Order No.79/FINAL ORDER/ST/KNA/2017 - Dated:- 25-4-2017 - S/Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'Business Auxiliary Services' and from 21-4-2009 under Construction service in respect of commercial or industrial building and civil structures and auxiliary services. The applicant, however, did not take registration under the category of management maintenance or repair service. They had not calculated service tax liability and discharged service tax properly. The applicant paid service tax at normal rate on service provided without material and under composition scheme on services provided with materials from 2007-08 onwards. 2.1 Thus the applicant appears to have contravened the provisions under Sections 65, 66, 67, 68 and 69 of the Finance Act, 1994 inasmuch as they have knowingly and intentionally suppressed the facts with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . (d) penalty under Section 76 of the Finance Act, 1994 should not be imposed for failure to pay service tax. (e) penalty under Section 78 of the Finance Act, 1994 ibid, should not be imposed from the department. (f) penalty under Section 77 of the Finance Act, 1994 ibid, should not be imposed on them for their failure to obtain registration in respect of management maintenance or repair service. 3. In their application filed before the Settlement Commission, the applicant submitted that there was no intention to evade payment of service tax which is proved from the fact that service tax of ₹ 65,40,401/- was already paid during relevant period. The negligible difference of ₹ 43,471/- was due to calculation and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the provisions of Finance Act, 1994. (c) Immunity from prosecution under the Finance Act, 1994 may be granted to the applicant. (d) immunity from proceedings under any other central enactments may be granted to the applicant. (e) to grant such other reliefs as the Hon'ble Commission may deem fit and proper in the facts and circumstances of the case. 4. The application filed by the applicant was allowed to be proceeded with under Section 32F(1) of the Central Excise Act, 1944 vide orders dated 27-2-2017 on file. 5. In their report dated 4-4-2017 Id. Commissioner, Service Tax-VII, Mumbai, reiterated the facts and averments made in the SCN and further submitted that- (i) the applicant had taken Service Tax regist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e on behalf of the applicant as well as Revenue. 7.1 It is a case where almost entire Service Tax liability had been timely discharged by the applicant by genuinely misclassifying the services rendered by them incorrectly under mistaken belief that the same was classifiable under Business Auxiliary Services rather than Management maintenance and Repair services. By misclassifying the services, the applicant has not gained financially since over ₹ 65 lakhs of Service Tax was already paid and Service Tax rates on both the services were the same. It cannot be Revenue's case that the applicant has benefited in any manner by wilfully misclassifying the services rendered by them. The ST-3 returns were also promptly filed by them. Sli ..... X X X X Extracts X X X X X X X X Extracts X X X X
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