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TMI Blog2018 (2) TMI 747X X X X Extracts X X X X X X X X Extracts X X X X ..... neutrality per se cannot be a ground for non payment of any tax which is otherwise payable. If the view of the appellant is accepted then the basis of Cenvat Credit Rules, 2004 will became redundant - appeal of assessee dismissed. Penalty u/s 78 - Held that: - There is a categorical, factual finding in the impugned order to the effect that the show cause notice did not allege any conscious act on the part of the appellant-assessee which will constitute fraud, collusion or willful misstatement etc. with intend to evade payment of tax - penalty not leviable. Appeal disposed off. - Service Tax Appeal No. 52014 of 2014, Service Tax Appeal No. 52389 of 2014 - Final Order No. 50597 -50598 /2018 - Dated:- 12-2-2018 - Hon ble Mr. Justice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant assessee discharged the Service Tax on a regular basis and discrepancy of short payment was enumerated based on accounts maintained by them only. However, he imposed penalty under section 77 for late filing of ST 3 returns. 2. The assessee-appellant have raised many issues in the appeal but restricted the arguments only to tax liability of ₹ 18,72,421/- attributable to reverse charge / import of service. Learned Counsel for the appellant assessee mainly submitted on two points: (a) Neither the show cause notice nor the impugned order invoked the provisions of correct statutory provisions of section 66 A to confirm the Service Tax liability on import of service. (b) In any case Service Tax payable on such reverse char ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... examined and upheld for the service imported by the appellant-assessee. We are in agreement with the learned AR that mere non mentioning of legal provision will not vitiate the proceedings when the gist of the provisions is available in the allegation and discussions recorded in the impugned order. Admittedly, the basis for confirmation has been brought out and the Commissioner who adjudicated the case is competent to confirm the tax liability under reverse charge. We do not find that technical objection of the appellant can stand legal scrutiny. As such, the appeal by the assessee-appellant on these grounds is not sustainable. 7. Regarding the revenue neutrality, we note that the said concept can be a valid ground for claiming bonafide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stitute fraud, collusion or willful misstatement etc. with intend to evade payment of tax. Infact, it has been recorded that the appellant-assessee has discharged their full tax liability for the period 2005-2006 to 2009-2010 as also part of the liability for the period 2010-2011 along with interest before the issue of notice. The appellants were facing serious financial crisis from October, 2008. After noting all the facts and circumstances of the case, the original authority invoked the provisions of section 80 for non-imposition of penalty under section 78. We find no error in such an exercise of discretion by the original authority. Accordingly, the appeal filed by the Revenue also is dismissed. 10. Thus, both the appeals are dismiss ..... X X X X Extracts X X X X X X X X Extracts X X X X
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