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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 ..... f dispute, however, since the appellant has already deposited the payment of service tax, there are no reason to go into this issue. It is found that element which need to be present for invoking provisions of Section 78 are not present in this particular case and therefore, the impugned order-in-appeal as well as order-in-original are legally not sustainable in so far as invoking of Section 78 of the Finance Act, 1994 is concerned. Demand of interest under Section 75 of FA - HELD THAT:- The demand of interest under Section 75 vide show cause notice dated 07.08.2014 on the payment made in 2011 and for the demand which pertains to 2005-06 to 2007-08 is much beyond the normal period of limitation and extended time proviso - Hon ble Gujarat Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /- 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 Section 78 of the Finance Act, 1994 for the reasons that the appellant have failed to pay service tax in time. 3. The matter got adjudicated vide impugned order-in-original dated 10.02.2016 whereunder the adjudicating authority has confirmed the recovery of interest of Rs. 4,45,118/- as per provisions of Section 75 of Finance Act, 1994 and penalty of Rs. 8,47,977 has also been confirmed as per Section 78 of the Finance Act, 1994. The appellant have approached the learned Commissioner (Appeals) who vide his orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uitment 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 case of M/s Dharampal Satyapal Limited vs. Dy. Commissioner of Central Excise, Gauhati & Ors - 2015-TIOL-121-SC-CX held that interest on demand without confirmation and recovery of service tax is legally not sustainable. 4.2 The learned advocate has also referred to Hon'ble Gujarat High Court decision in the case of CCE vs. GNFC Limited - 2010 (262) ELT 829 (Guj.) wherein the Hon'ble High Court has held that interest cannot be confirmed on time-barred demand which is not even raised in this particula ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 them. I am also of the view that classification of the service in this case is also a subject matter of dispute, however, since the appellant has already deposited the payment of service tax, I do not find any reason to go into this issue. I find that element which need to be present for invoking provisions of Section 78 are not present in this particular case and therefore, I find that impugned order-in-appeal as well as order-in-original are legally not sustainable in so far as invoking of Section 78 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st 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 year 1999 in Audit report 181/98 of the internal audit Section an objection had been raised that the assessee (M/s. GNFC) are clearing CAN to M/s. NCPL at a price which is lower than the price at which the same goods are being sold to other buyers. M/s. GNFC vide their letter dated 24-12-1998 explained that the lower price is charged to M/s. NCPL for purely commercial consideration which relates to quantity of CAN purchased by them (M/s. NCPL) and that since M/s. NCPL had lifted more than 50% of the total quan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 declared under the law does not constitute mis-declaration. Therefore, in this case, not declaring the clearance to M/s. NCPL, a related person, separately in the ER-1 returns or not informing the department about these clearance does not constitute mis-declaration or suppression of fact. It was for the jurisdictional range officer to go through the ER-1 returns, find out whether these are any clearance to M/s. NCPL or if so call for their details. But no such thing was done. In view of this, the allegation t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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