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TMI Blog2023 (12) TMI 1065X X X X Extracts X X X X X X X X Extracts X X X X ..... n 77 of the Finance Act, 1994? - HELD THAT:- The Appellant has deposited the Service Tax of Rs.4,05,205/- along with interest of Rs.1,30,876/- on 25.02.2009 without raising any dispute. In terms of Section 73(3) of the Finance Act, 1994, where the Service Tax along with the interest is paid by the assessee on the basis of tax ascertained by the Central Excise Officer, no SCN is required to be served - this view has been held by this Tribunal in the case of M/S. NATIONAL POWER ENGINEERING COMPANY VERSUS COMMISSIONER OF CGST CENTRAL EXCISE, SILIGURI COMMISSIONERATE [ 2023 (7) TMI 361 - CESTAT KOLKATA] - imposition of penalty under Section 78 of the Finance Act, 1994 is not warranted in this case - the penalty imposed under Section 78 is s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccountants for the Appellant Shri S. Mukhopadhyay, Authorized Representative for the Respondent ORDER PER K. ANPAZHAKAN : The present appeal has been filed against the impugned Order-in- Appeal 34/ST/BBSR-II/2011 dated 16.03.2011. The demand in this case pertains to Rs.4,05,205 and Rs.34,865, totally amounting to Rs. 4,40,070/- Out of this amount, the Appellant has already paid Rs. 4,05,205 along with Interest of Rs.1,30,876/- before issue of the SCN. The Appellant is disputing the penalty equal to duty imposed on this amount already paid. They are also disputing the balance tax of Rs. 34,865/-. 2. Regarding the penalty imposed under Section 78 of the Finance Act, 1994, the Appellant submits that proceedings were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e unconstitutional by the Hon'ble Delhi High Court on 18.04.2009 (Home Solution Retail India Limited vs Union of India, 2009 (14) STR 433 (Del.). The issue with regard to the levy was in dispute. The impugned Show Cause Notice dated 18.03.2010 was issued during the period when the levy already was declared unconstitutional. It was only in the Finance Act, 2010 enacted on 08.05.2010, the levy was revalidated with retrospective effect. The Appellant submits that the demand was raised by invoking extended period of limitation which is legally not sustainable for the reason that the levy was in dispute during that period and there cannot be any case of any fraud or suppression with an intent to evade payment of service tax. Hence, the deman ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nance Act, 1994? (ii) Whether Service Tax of Rs.34,865/- is payable under the category of Renting Immovable Property Services (RIPS) during the period 2007-08 2008-09 for the amount shown as 'godown rent' in the balance sheet? 9. Regarding the penalty imposed under Section 78 of the Finance Act, 1994, we observe that the Appellant has deposited the Service Tax of Rs.4,05,205/- along with interest of Rs.1,30,876/- on 25.02.2009 without raising any dispute. In terms of Section 73(3) of the Finance Act, 1994, where the Service Tax along with the interest is paid by the assessee on the basis of tax ascertained by the Central Excise Officer, no SCN is required to be served. We observe that this view has been held by this Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contended that the services rendered are warehousing services and the Appellant is liable to pay service tax on the said income. In this regard, the Appellant submitted the copy of the agreement entered by them with ICICI bank to substantiate their claim that the land was used for parking of repossessed vehicles and they are entitled for the benefit of the exemption as provided under Clause (c) of Explanation 1 to Section 65(105) (zzzz) of the Finance Act. On perusal of the agreement, we observe that the Annexure to the agreement gives the rates payable by ICICI bank, which is reproduced below: RATE ANNEXURE COMMERCIAL VEHICLE : Rs.50/- per DayperVehicle Auto : Rs.35/ per day per Vehicle TWO WHEELER : Rs.10/- per Day per Vehic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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