2009 (7) TMI 1091

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....ellant was made to pay the Service tax in respect of GTO services used during the period from 16-11-1997 to 1-6-1998; that as per Section 71A of the Finance Act, 1994 (hereinafter referred as the Act) read with Rule 7A of the Service Tax Rules, 1994, the appellant was required to furnish the return in the form of ST3B along with copy of challan in the form of TR6 within a period of six months from 13-5-2003 and since the appellant did not file the said return by 13-11-2003, the SCN dated 8-11-2004 was issued proposing to recover the Service tax amount of Rs. 4,63,335/- under Section 73 of the Act along with proposal to impose penalty under Sections 71A, 76, 77 and 78 of the Act; that on adjudication, the lower authority relied on the decisi....

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....owing decisions (a) CCE v. Ghatprabha SSK Ltd. - 2007 (8) S.T.R. 545, and (b) Final order No. 210/08 = 2008 (12) S.T.R. 552 (Tri.-Bang.) (M/s. Hiranyakeshi SSK Niyamit Ltd.) (iii) that the Assistant Commissioner has not offered any findings about the applicability of the ratio laid down in the case of Hiranyakeshi SSK Niyamit Ltd.; (iv) that the Assistant Commissioner has clearly admitted that the issue is of interpretation and the liability is the result of the retrospective amendments and hence there is no mala fide intention but still the Assistant Commissioner has imposed equal penalty under Section 76 and another penalty of Rs. 1,000/- under Section 77 and hence the penalties imposed can be waived by extending the protection under ....

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....equal penalty under Section 76 and another penalty of Rs. 1,000/- under Section 77 of the Act holding that the appellant is liable to pay Service tax on GTO Services used by him during the period from 16-11-1997 to 1-6-1998 by virtue of amendments introduced under Section 68, read with Section 71A and Rule 7A. To come to the conclusion, he has also relied upon the decisions of the Hon'ble CESTAT in the case of Mangalam Cements Ltd. v. CCE, Jaipur mentioned supra. Whereas the appellant claims that for the same issue, for the same amount and for the same period, the Department has already issued a SCN dated 3-9-2001 and the matter is presently pending in CESTAT and in view of the above, the present SCN dated 8-11-2004 is not sustainable, on t....

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....n by the Hon'ble CESTAT in the case of Mangalam Cements cannot be applied to the issue on hand, in as much as, that in the instant case, the earlier SCN was adjudicated confirming the demand along with interest which order has been upheld by the Commissioner (Appeals) vide his OIA No. 197/2005, dated 26-4-2005 and against that order, the appellant has filed an appeal before the CESTAT which is pending as on date, as contended by the appellant. Therefore, it is to be seen that when the demand was adjudicated and confirmed the payment, is it necessary to issue another SCN covering the same issue, same amount and same period? Legally, it is not correct in view of the fact that the appellant was held to be liable for Service tax along with inte....