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TMI Blog2019 (6) TMI 1274X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Finance Act, 1994. 2. Briefly the facts of the present case are that the appellants are engaged in the manufacture of Workstation, Modular Partition, Pedestal Storage falling under Chapter subheading 9403 3090 of the first Schedule to Central Excise Tariff Act, 1985. They also hold service tax registration for discharging service tax on Design Services provided to their customers and are availing GTA services and Manpower Recruitment and Supply Agency services under Reverse Charge Mechanism. 2.1 During the course of departmental audit of the records of the appellant for the period October 2013 to December 2014, it was noticed that they had received certain amounts as consideration towards interior design and drawing services provid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, asserting that the appellant had defaulted in payment of tax as they had debited their CENVAT account only in February 2015 after audit objections and not on a monthly basis as claimed. The Original Authority also imposed equal penalty under Section 78 of the Finance Act, 1994 for suppression of facts etc. and penalty of Rs. 20,000/- under Section 70 of the Finance Act, 1994 read with Rule 7(c) of the Service Tax Rules, 1994 for non-filing of the statutory returns. Aggrieved by the said order, appellant filed appeal before the Commissioner (A) and the Commissioner (A) set aside the demand of Rs. 50,43,406/-. Further, the Commissioner (A) has also observed that the short-payment of service tax amounting to Rs. 7,69,433/- for the month of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... LTU, Bangalore vs. Adecco Flexione Workforce: 2012 (26) STR 3 (Kar.) * CCE, Nagpur vs. Galaxy Construction P. Ltd.: 2017 (48) STR 37 (Bom.) * Krishna H. T. Vs. CCE, Mysuru: 2018-TIOL-1819-CESTAT-BANG. 4.1 He also submitted that no penalty can be imposed when the transactions are reflected in the books of assessee. For this submission, he relied upon the decision rendered in the case of Calderys India Refractories Ltd. vs. CCE, Aurangabad: 2013-TIOL-2134-CESTAT-MUM. 5. After considering the submissions of both the parties and on perusal of the material on record, I find that in the impugned order, the Commissioner (A) has set aside the demand of Rs. 50,43,406/- on the ground that the appellant has been paying the service tax by debiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the decisions relied upon by the appellant are squarely applicable in the present case and therefore, following the ratio of the said decisions, I am of the view that the impugned order is not sustainable in law. Accordingly, I set aside the impugned order by allowing the appeal of the appellant." 5.1 Further, the Division Bench of this Tribunal in the case of Calderys India Refractories Ltd. vs. CCE (supra) in para 6.3 has held as under: "6.3 As regards the penalty imposed under Section 77 and 78, in the present case, it is evident from the records that the appellant discharged the service tax liability along with interest, thereon as soon as the short payments was pointed out to them and they also intimated the same to the department ..... X X X X Extracts X X X X X X X X Extracts X X X X
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