9911796707
TMI Blog2025 (4) TMI 1329X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of the adjudicating authority. By the said OIO demand of Rs.23,30,494/- being the service tax payable from 16.06.2005 to 31.01.2007 under Section 73(2) of the Act was confirmed along with applicable interest and the amounts of Rs.23,30,494/- and Rs.6,31,152/- paid by the appellant was appropriated towards the demand of duty and interest respectively. Further, an equivalent penalty under Section 78 of the Act as well as penalty of Rs.5,000/- under Section 77 of the Act was imposed vide the said OIO. 2. Relevant Facts are that the appellant was providing Manpower Recruitment & Supply Agency Service and during audit by the Department on 14.05.2008, it was noticed that the appellant had not obtained registration and had failed to pay service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before this Tribunal. 3. Mr. R.Balagopal, Consultant, appeared and argued for the Appellant. He submits that the appellant was not aware of his liability and hence even though he provided the service he had not collected the service tax from M/s. Madras Cements, and immediately upon audit pointing out the appellant requested M/s Madras Cements to provide the service tax amounts that were payable and had upon receipt of the same promptly paid the service tax dues so realized from their service recipients. He submits that there is no allegation in the SCN that the appellant has collected service tax and had not discharged the same. The Ld. Consultant submits that as per provisions of Section 73(3) of the Act during the relevant period, no no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntions of failure to assess the tax due, furnish ST-3 returns and pay the tax due "with willful intention to evade payment of duty" has not provided any evidence of any positive act done by the appellant with deliberate intention to evade payment of duty, thereby rendering the invoking of extended period of limitation untenable. It is settled law that a mere mechanical reproduction of the language of the proviso to Section 73(1) of the Finance Act, 1994 does not per se justify invocation of the extended period of limitation. A mere ipse dixit that the noticee wilfully suppressed the material facts with intent to evade payment of service tax is not sufficient and the burden to let in evidence of malafide rests heavily on the Department when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same, we hold that the penalty imposed for this issue requires to be set aside which we hereby do."
8. Similar view has also been held in Commissioner of Central Tax, Bangalore v Lalit Ashok, 2022 (66) GSTL 314 (Kar), and DLF Project Ltd v CCE & ST, Gurgaon I, 2020 (38) GSTL 56 (Tri-Chan).
9. Following the ratio of the decisions cited supra, and given the facts and circumstances of this case discussed above, we hold that the impugned OIA to the extent it upholds the penalties imposed on the appellant cannot sustain. We modify the impugned OIA to the extent of setting aside the penalties imposed on the appellant.
The Appeal stands disposed on the above terms.
( Order pronounced in open court on 22. 04. 2025 ) X X X X Extracts X X X X X X X X Extracts X X X X
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