9911796707
TMI Blog2019 (2) TMI 21X X X X Extracts X X X X X X X X Extracts X X X X ..... and discharge of duty liability in respect of imposition of tax as per Section 265 of the Constitution of India. Moreover, appellant was given a written promise before commencement of Audit that if any discrepancy in the audit is pointed out and the same is complied with, no further litigation would ensue. When show-cause does not contain the rule violated by the respondent while proposing penalty which Commissioner (Appeals) found from the factual aspect of the case to have been covered under Section 73(2) and held that in such an event proceeding is to be concluded under section 73(3), there is nothing left before this court to interfere with the finding of the Commissioner (Appeals). Penalty u/s 77 of FA - Held that:- A reading of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taxable value which was less shown in the ST-3 returns and accordingly service tax liability of ₹ 5,01,483/- was calculated. In compliance to such audit observation, appellant discharged duty liability along with interest for both components but was subsequently vide notice dated 31.03.2013 was put to show-cause for alleged suppression with a proposal for imposition of penalty under section 76, 77 and 78 of the Finance Act r/w Rule 15(3) of the Cenvat Credit Rules. Matter was adjudicated upon, penalty equivalent to duty demand was confirmed under section 78 and penalty of ₹ 7000/- was imposed under section 77 of the said Act by the adjudicating authority who set aside only proposed penalty under section 76 of the Act. Matter was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... saction in ST3 return for which it can be considered to have misstated the facts with a clear intention to evade payment of duty and had audit not been conducted, the fact of not discharging service tax liability would have remained unnoticed and since respondent department is registered from 2006 and very familiar with service tax provisions, it s conducted itself clearly justified suppression. The other contention of the appellant is that Rule 9(6) of the Cenvat Credit Rules 2004 puts the burden of proof regarding admissibility of cenvat credit on the assessee and in case of any doubt it could have sought advice from the department and should never have misstated the fact in the ST3 return for which the order of the Commissioner (Appeals) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judicial decisions reported in 2017 (47) STR 225 (Tri-Mum), 2016 (45) STR 99 (Tri-Mum) and 2012 (26) STR 3 (Kar) argued that as per Section 73(3) of the Finance Act issuing a show-cause notice after payment of service tax with interest is not supported by the provisions of the Act and circular no. 137/167/2006-CX IV dated 03.10.2007 clearly stipulates that in such a situation, all proceedings are required to be concluded against the person to whom show-cause is issued under sub section (1) of section 73 if he had paid service tax in full together with interest and penalty, if applicable under sub section (1)(a). She further prayed for affirmation of the order passed by the Commissioner (Appeals). 5. Heard from both sides at length, an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in fact inadmissible and not supported by the Rule except that respondent had accepted the fact of such availment of such credit as inadmissible. Though admissibility or inadmissibility of the credit in respect of renting of immovable property and business support service is a mixed question of fact and law, the same requires no discussion here in view of admission by the respondent except to the extent that there is a difference between compliance of audit report and discharge of duty liability in respect of imposition of tax as per Section 265 of the Constitution of India. Moreover, appellant was given a written promise before commencement of Audit that if any discrepancy in the audit is pointed out and the same is complied with, no fur ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
