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TMI Blog2018 (12) TMI 22X X X X Extracts X X X X X X X X Extracts X X X X ..... rvices being very much included in the definition of input services as given in Rule 3 of Cenvat Credit Rules, 2004 - the appellants were entitled to avail the Cenvat Credit. Time limitation - penalty - Held that:- It was the onus of the Department to prove the alleged suppression or misrepresentation of the facts that too, with an intention of the appellant to evade the duty - There is no such evidence on record. Duty has regularly and duly been paid by the appellant. The Cenvat Credit as availed as being rightly availed - The show cause notice being beyond the period of one year is therefore held to be a time barred notice - penalty also not warranted. Appeal allowed - decided in favor of appellant. - Service Tax Appeal No.ST/52033 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er under challenge. Resulting into the impugned appeal. 3. I have heard Mr.Ranjan Mehta, C.A. for the appellant. 4. It is submitted that the appellant had entered into a contract with M/s. Manium Properties Pvt. Ltd., the owner of Pink Secure Mall dated 25.08.2011 for the purpose of undertaking the complete operation, maintenance, management and marketing of the said mall. irrespective that the title of the contract is merely a maintenance contract but the sales promotion, marketing and marketing consultancy services are very much the part of the contract as is apparent from the terms therein. It is submitted that the show cause notice has been issued on a wrong presumption. The adjudicating authorities below have been silent about va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proper marketing and public relations and conduct marketing and public relations activities as per final suggestions of the Owner for the Mall/Property. (Cl.17) 5. Will use diligent and all reasonable efforts to enforce the performance by tenants licenses of all requirements of their respective lease terms. (Cl.18) 7. The value for this contract is the value for all the above services as were agreed to be provided by the appellant in addition to maintenance, management and repair services. In the given circumstances, the findings of the adjudicating authority below for considering the title of the contract i.e. Maintenance Contract while denying the relief are opined to be a rigid opinion. There is a catena of judgements holding tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure to carry out a statutory obligation is the result of a quasi-criminal proceeding, and penalty will not ordinarily be imposed unless the party obliged either acted deliberately in defiance of law or was guilty of conduct contumacious or dishonest, or acted in conscious disregard of its obligation, Penalty will not also be imposed merely because it is lawful to do so. Whether penalty should be imposed for failure to perform a statutory obligation is a matter of discretion of the authority to be exercised judicially and on a consideration of all the relevant circumstances. Even if a minimum penalty is prescribed, the authority competent to impose the penalty will be justified in refusing to impose penalty, when there is a technical or veni ..... X X X X Extracts X X X X X X X X Extracts X X X X
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