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TMI Blog2025 (1) TMI 1093X X X X Extracts X X X X X X X X Extracts X X X X ..... s awarded to the appellant by M/s. Gujarat Alkalies and Chemicals Limited. The department observed that the appellant are engaged in the supply of manpower and agency service to M/s. Gujarat Alkalies and Chemicals Limited. The appellant, after the audit of their financial records have paid an amount of Rs. 8,47,977/- vide GAR-7 No. 00003 dated 25.03.2011 voluntarily. 2. The department issued show cause notice dated 07.08.2014 whereunder an amount of interest of Rs. 4,45,118/- on the service tax Rs. 8,47,977/- has been demanded as per provisions of Section 75 of the Finance Act, 1994. Subsequently vide corrigendum to show cause notice No. D-III/ST/ A.R.-287/2010-11 dated 07.08.2014 the department has also invoked penal provisions under Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned advocate has submitted that even on merits, all the contracts with M/s. Gujarat Alkalies and Chemicals Limited are for accomplishment of specific work at the rates which have been provided either on per MT basis or per Kg. basis and the contracts do not talk about recruitment or supply of manpower to the recipient. It has been contention of the learned advocate that original adjudicating authority has mentioned that suo-moto payment of service tax towards service tax payable by the appellant on recruitment or supply of manpower agency service. However since the service has already been paid by the appellant he is not pressing on this particular legal aspect. The learned advocate has submitted that Hon'ble Supreme Court in the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w cause notice has been issued on 07.08.2014 for demanding interest and by amended SCN by a corrigendum dated 07.08.2014 the penal provisions under Section 78 of Finance Act, 1994 has been invoked. 7. So far as imposition of penalty under Section 78 of Finance Act, 1994 is concerned, the adjudicating authority need to determine first that any fraud, collusion, willful mis-statement, suppression of facts or any contravention of rules with an intent to evade payment of service tax are present in the matter. I find from the record of the appeal that audit party pointed out short payment of service tax only on the basis of contracts entered with M/s. Gujarat Alkalies and Chemicals Limited and all the contracts/ work orders were available with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terms of the provisions of Rule 4, and the proposal in the notice to adopt the value at the rate of 115% of the cost of the product was not justified. This clearly shows that appellants were contesting the duty demand and it is not a case of accepted, short paid or non paid duty so as to invoke the provisions of Section 11A(2B). In these circumstances, the findings of the Commissioner that as the appellant has already deposited the duty, no further confirmation is called for and his directions to pay interest on the said duty are not justified. 6. We further note that while dealing with the appellant's plea on limitation, Commissioner has given findings as under :- "8................. On going through the records, I find that in the ye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f dispute the sales invoices were not required to be enclosed along with ER-1 returns, the jurisdictional Range Officer in course of scrutiny of ER-1 returns are supposed to call for the Central Excise invoices for checking. In ER-1 returns, an assessee is required to declare the total value of clearance for home consumption, the total value of clearance for export, duty exemption availed, duty paid through Cenvat credit account etc. and he is not required to declare the customer wise breakup of the value of clearances. It is settled law that mis-declaration means not declaring something or making an incorrect declaration about something, which he is required to declare under the law and not declaring something which is not required to be d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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