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2025 (1) TMI 78

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..... , the Commissioner vide Order-in-Original No. 08/ST/COMMR/VMJ/RTK/2017-18 dated 29.12.2017 has allowed the benefit in favour of the Appellant and the department has accepted the said order and has not filed any appeal against the same. Since the department has accepted the order of the Commissioner dated 29.12.2017, which has now attained finality and the present proceedings have also arisen on the basis of same audit, therefore, it is held that the issue is squarely covered in favour of the Appellant. Further, the Appellant had rightly paid the education cess and secondary higher education cess on the amount of net service tax i.e. service tax after deducting the amount of R D cess i.e. exempted amount. Conclusion - The appellant had right .....

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..... Research and Development Cess ('R D cess') paid on transfer or import of technology under Section 3 of the R D Cess Act, 1986. Accordingly, the Appellant paid the education cess and secondary higher education cess on the amount of net service tax i.e. service tax after deducting the amount of R D cess i.e. the exempted amount. Basis on the audit observations, a show cause notice dated 08.04.2011 was issued to the Appellant invoking the extended period of limitation. After following the due process, the learned Commissioner has confirmed the demand raised in the show cause notice alongwith interest and penalties. Hence, the present appeal. 3. Heard both the parties and perused the material on record. 4.1 The learned Counsel for the .....

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..... cise 2020-TIOL-916-CESTAT-CHD (affirmed by the Hon ble Supreme Court vide order dated 10.07.2023) 4.3 The learned Counsel further submits that the Commissioner vide impugned order has confirmed the demand of education cess and secondary higher education cess on the ground that these cesses are levied and collected as service tax and therefore, forms an integral part of the service tax and since the Notifications provide the exemption from the payment of service tax, accordingly, the amount of R D cess shall be deducted from the amount of service tax including education cess and secondary higher education cess and not from the amount of the service tax only. She further submits that education cess and secondary higher education cess should b .....

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..... nd the issue involved in the present case is interpretation of complex legal provisions. Therefore, suppression with intention to evade tax cannot be alleged against the Appellant. 5. On the other hand, the learned AR for the Revenue reiterates the findings of the impugned order. 6. We have considered the submissions made by both the parties and perused the material on record. We find that in the Appellant s own case for the subsequent period pertaining to financial year 2014-15 and 2015-16 involving the identical issue as involved in the present case, the Commissioner vide Order-in-Original No. 08/ST/COMMR/VMJ/RTK/2017-18 dated 29.12.2017 has allowed the benefit in favour of the Appellant and the department has accepted the said order and .....

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