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TMI Blog2019 (7) TMI 1661X X X X Extracts X X X X X X X X Extracts X X X X ..... y be allowed in those cases where Service Tax has not been collected by the appellant - This has also been clarified vide Para 5.7 of CBEC instruction No.341/18/2004-TRU (PT) dated 17.12.2014. Levy of Penalty - Suppression of facts or not - HELD THAT:- There are no ingredient of suppression of facts, misstatement etc. with intent to evade payment of Service Tax. Hence the penalty imposed under Section 78 of the Finance Act, 1994 is set aside. The matter is remanded for the limited purpose of re-computation of cum-tax value and verification of the related documents - Penalty is set aside - appeal allowed in part. X X X X Extracts X X X X X X X X Extracts X X X X ..... ial period. (ii) Wherever service tax has not been collected, the total commission/earning should be taken as 'cum-tax-value' in terms of Section 67(2) ibid, read with judgments in the cases of Commissioner of Central Excise vs. Advantage Consultant [2009 (14) STR J49 (SC)] & Professional Courier vs. Commissioner of Central Excise [2014 (36) STR J110 (Bom.)]. Unpaid part of service tax may please be directed to be worked out accordingly. (iii) Denial of utilization of credit of ₹ 2,07,151/- on the alleged ground of non-production of corresponding invoices was not at all a point/issue made in the impugned show cause notice. The adjudicating authority could not travel beyond the scope and ambit of the show cause notice and learned C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cords. 6. I find that the order for denial of Cenvat availment to the extent of ₹ 2,07,151/- was not raised in the show cause notice. I find that till the time the bank was converted into a CBS branch, Service Tax on the services was not collected properly, particularly in respect of locker rent and agency commission. It is also submitted that whatever Service Tax was collected by the bank, the same was deposited with the exchequer. Regarding non-payment of tax on agency commission, it is submitted that the commission is earned by the head office and the head office is discharging its liability of Service Tax and accordingly if the appellant is made to pay the Service Tax all over again, that would tantamount to double taxation. I fi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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