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TMI Blog2023 (11) TMI 371X X X X Extracts X X X X X X X X Extracts X X X X ..... ce Act. This apart, a perusal of the order passed by the Tribunal on 06.02.2018 also shows that the bona fides of the appellant were not in doubt and, therefore, the extended period of limitation was not invoked. In this view of the matter, the imposition of penalties under sections 76 and 77 of the Finance Act cannot be sustained. As this issue has not been decided by the Commissioner (Appeals), it will not be appropriate for the Tribunal to record a finding in the first stance. The matter would have to be remitted to the Commissioner (Appeals) to decide this issue in accordance with law. While confirming the demand of service tax, the penalty imposed upon the appellant under sections 76 and 77 of the Finance Act are set aside and the matter is remitted to the Commissioner (Appeals) only for the limited purpose of deciding whether the appellant was justified in paying service tax on Rs. 3,66,93,393/- - Appeal allowed. - SHRI DILIP GUPTA, PRESIDENT AND P.V. SUBBA RAO, MEMBER (TECHNICAL) Mr. Srinivas Kotni Mr. S. K. Maurya, Advocates for the Appellant Ms. Jaya Kumari, Authorised Representative for the Department. ORDER M/s National Cooperative Devel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the appellant assisted by Shri S.K. Maurya has submitted that though on merits the issue stands decided against the appellant by a decision of the Tribunal rendered on 06.02.2018 in Service Tax Appeal No. 4191-4192 of 2012 [National Co-operative Development Corporation vs. Commissioner of Service tax, Delhi], but the Commissioner (Appeals) committed an error in confirming the imposition of penalty under sections 76 and 77 of the Finance Act 1994 [the Finance Act]. Learned counsel further submitted that even though it was pointed out to the Commissioner (Appeals) that the Ministry released service charges amounting Rs. 3,66,93,393/- only out of total amount of Rs. 4,30,08,843/- but the Commissioner (Appeals) failed to appreciate this fact and rendered no finding on this aspect. 6. Ms. Jaya Kumari, learned authorized representative appearing for the department has, however, supported the order and has contended that the appellant, in any view of the matter, was required to deposit the entire amount indicated in the invoice and claim adjustment in the subsequent invoices. Learned authorized representative also submitted that the imposition of penalty under sections 76 and 77 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lhi where they have explained the full particulars of their activity, nature of loan arrangement etc and they did follow up with reminders. It clearly shows the bonafide of the appellant and as Govt. corporation, there is a rebuttable presumption that they have no intention to evade the tax. Infact, original authority did record clearly about the lack of malafide. It is clearly recorded in his finding that the appellant is nothing to gain from suppressing the fact and no malafide intend can be attributed to them in the present facts and circumstances of the case. He also recorded that the appellant has no reason to evade the payment of tax deliberately. The facts as enumerated and also finding of the original authority clearly bring out a case of bonafide of the appellant in the present proceedings. We note that demand proceeding initiated against the appellant are barred by limitation for the period beyond normal period. 10. The only issues that need to be decided in this appeal are as to whether the Commissioner (Appeals) was justified in imposing penalty under sections 76 and 77 of the Finance Act and whether the contention advanced by the learned counsel for the appellant t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In other words, the Noticee deposited Service Tax under protest as and when the Service Charges (commission of 0.5 per cent) is received from the Government of India. However, the Point of Taxation Rules ('PoT Rules') which were introduced vide Notification No. 25/2011 dated 31.03.2011, became mandatory w.e.f. 01.07. 2011. As per PoT Rules, the liability to pay Service Tax arises based upon the date of issuance of invoice instead of receipt of payment from the Service Recipient. 6. Considering the amended law, which became mandatory we.f 01.07.2011, the Notice being a law abiding assessee deposited the Service Tax (under protest) amounting to Rs 35,23,527/- (Rupees Thirty Five Lacs Twenty Three Thousand Five Hundred and Twenty Seven Only) along-with interest amounting to Rs 6,87,088/- (Rupees Six Lacs Eighty Seven Thousand Eighty Eight Only) totalling Rs 42,10,615/- (Rupees Forty Two Lacs Ten Thousand Six Hundred and Fifteen Only) for the period 01.07.2011 to 31.03.2012 vide Challan No. 51072 dated 03.05.2013. The Notice vide letter dated 20.05.2013 apprised these facts to the Department that the Service Tax for the period 01.07.2011 to 31.03.2012 has been deposited unde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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