TaxTMI 
TaxTMI 
2010 (5) TMI 419
X X X X Extracts X X X X
X X X X Extracts X X X X
....red to as respondent), are as under :- 1.1 The appellant provided the taxable services of industrial construction for which they have Central Excise registration. In addition to this, they have registration for goods transport agency (GTA) services as service receiver. Notification No. 15/2004-S.T. dated 10-9-04 issued under Section 93 of the Finance Act, 1994 exempted the taxable services provided by a commercial concern to a person in relation to construction services from so much of the service tax leviable thereon under Section 66 of the said Act, as is in excess of the service tax calculated on the value, which is equivalent to 33% of the gross amount charged from any person by such commercial concern for providing the said ta....
X X X X Extracts X X X X
X X X X Extracts X X X X
....or the period ending 31-3-2006, availment of Service Tax credit amounting to Rs. 41,658/- had been declared. It appears that on scrutiny of Service Tax return, when the department found that during the month of March, 2006, appellant, while availing the Service Tax credit of Rs. 41,658/- also availed the benefit of exemption under Notification No. 1/2006 S.T., it issued a show cause notice dated 5-12-2006 for denying the exemption under Notification No. 1/2006 S.T. for the month of March, 2006 and also for recovery of Service Tax amounting to Rs. 2,69,063/- along with education cess and interest from the appellant and also imposition of penalty on them under Section 76 and 78 of the Finance Act, 1994. The show cause notice was adjudicated b....
X X X X Extracts X X X X
X X X X Extracts X X X X
....respect of some inputs services during the month of March, 2006 and also availed the exemption under Notification No. 1/2006-S.T., though there was no mala fide intention on the part of the appellant, as the availment of exemption as well as Cenvat credit of input services had been declared in the S.T.-3 return and it is only from scrutiny of the S.T.-3 return that the department subsequently issued Show cause notice for denying the exemption and recovery of Service Tax; that this is only an unintentional mistake and in the absence of any element of wilful suppression, fraud etc., the elements for invoking the provisions of Section 78 are not present and hence penalty under Section 78 has been rightly set aside by the Commissioner (Appeals)....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hly return for period ending March, 2006 and only on scrutiny of this S.T. 3 return that the department had issued Show cause notice. In view of this, I do not find any element, whatsoever, of wilful suppression of facts, fraud, mis-statement etc. with intent to evade the Service Tax and hence the provisions of Section 78 are not attracted at all and accordingly the Commissioner (Appeals)'s findings on this point are correct. 4. As regards the penalty under Section 76, though the penalty under this section is attracted in every case where service tax is not paid by the due date, this is not a case of default in payment but the case of short payment of service tax due to wrong availment of exemption which prima facie, had taken plac....