9911796707
Advanced Search 
TMI Blog2018 (3) TMI 355X X X X Extracts X X X X X X X X Extracts X X X X ..... Earthmovers argued that they were involved in mining activity and were receiving service tax payments along with service tax but had not filed ST.3 returns during the period 1.6.2007 to 31.3.2010. They were not maintained prescribed records under the Service Tax Rules. On being pointed out after investigation by Goa, Regional Unit by DGCEI, the appellant filed the Service Tax Return for the period June 2007 to March 2010 on 26.5.2010 and 22.6.2010. He pointed out that show cause notice was issued alleging that they had not paid service tax during the period. Ld. Counsel argued that though they had not filed ST-3 Returns but they were maintaining records by which they were entitled to the credit of cenvat and the said cenvat credit was used ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . For the purpose of justifying the demand of interest, he relied on the decision of Tribunal in the case of Commissioner of Service Tax, Mumbai Vs. Toyo Engineering Corporation Ltd. 2014-TIOL-2020-CESTAT-MUM. 3.1. Ld. AR further pointed out that there was a clear default on the part of the appellant as they had not discharged duty liability and therefore penalty under Section 76 & 78 is justified. 4. We have gone through the rival submissions the impugned order relied on the decision of Tribunal in the case of Toyo Engineering Ltd. 2014-TIOL-2020-CESTAT-MUM to upholds the demand of interest. In the said decision the following has been observed as under: "5. We have carefully considered the submissions. The question of payment of tax is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t/input services does not automatically become cenvat credit at the hands of the appellant. In this regard the decision of Tribunal in the case of Toyo Engineering Corporation Ltd. (supra) becomes applicable to this situation. In view of above the appeal of M/s. Venkateshwara Earthmovers is dismissed. 5. In so far as the appeal of revenue is concerned it has been urged in the grounds of appeal that the appellant M/s, Venkatshwara Earthmovers recovering the service tax amount from the service receiver and therefore were mandatorily required to discharge their duty liability. M/s. Venkateshwara Earthmovers have failed to file return for a period of almost three years. The facility of filing late returns is only a facility to be used in exige ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave made themselves liable to penalty under Section 78 also.
6. In view of above, the appeal filled by the revenue is allowed to the extent that the penalty equal to the duty amount confirmed under Section 78 is imposed however the noticee is given an option to pay only 25% of the penalty amount. Subject to the condition that the entire service tax and interest along 25% penalty under Section 78 are paid within 30 days of communication of this order. No penalty under Section 76 is imposed in view of the decision of the Hon'ble High Court of Punjab and Haryana in the case of Commissioner of Central Excise Vs. First Flight Courier Ltd. 2011(22) STR 622 (P & H). Cross-objection is also disposed of.
( Pronounced in court on 28/02/2018 ) X X X X Extracts X X X X X X X X Extracts X X X X
|
