TaxTMI 
TaxTMI 
2012 (6) TMI 43
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....mitation prescribed under Section 73(1) of the Act. 3. We have examined the records and heard both sides. It is agreed by both sides that the facts, evidence and issue involved in the three cases are similar. Therefore, for the sake of examining the facts and evidence on record, we take up appeal No. ST/256/2008 as a specimen. The appellant in this appeal is aggrieved by demand of Service tax of Rs. 1,08,54,784/'- together with education cess totaling to Rs. 1,10,82,548/- confirmed against them under the proviso to Section 73(1) of the Finance Act, 1994. This demand of tax is under the head "Manpower Recruitment or Supply Agency's Service" defined under Section 65(105)(k) of the Finance Act, 1994. In a statement given by the Assistant Manager of the appellant-company under Section 14 of the Central Excise Act to the investigators of the department on 2-7-2007, the Assistant Manager stated that they were not registered with the department under the above head and that they were going to take such registration. In answer to another query as to whether an amount of Rs....
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....paid the service tax 'under protest' prior to issuance of the show-cause notice and, therefore, neither any interest was leviable on the tax nor any penalty im.posable on them. The demand of service tax was also challenged on the ground of time-bar. It was also claimed that the statement of the Assistant Manager had been taken under compulsion and hence "not relevant". It was also complained that natural justice had been violated inasmuch as no copy of the investigating officer's report was supplied. The appellant also wanted to cross- examine the officers who recorded the Assistant Manager's statement. In adjudication of the dispute, the Commissioner passed the order which is under challenge in appeal No. ST/256/2.008. The events leading to two other orders of the Commissioner, which are impugned in Appeal No. ST/7/2009 and Appeal No. ST/ 68/2009, are admittedly similar. 4. At the outset, the learned counsel for the appellants has moved Miscellaneous Applications under Rule 23 of the CESTAT (Procedure) Rules for permissions to bring on record certain documents as additional evidence. The documents which are proposed to be brought on record include a copy o....
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....ements given by the appellants under Section 14 of the Central Excise Act read with Section 83 of the Finance Act, 1994 were retracted at any stage. The statements are clearly in the nature of admission of tax liability. Even the amounts of service tax were also estimated and mentioned in those statements. Readiness to pay the tax was categorically expressed in those statements. The subsequent conduct of the appellants (payment of service tax though 'under protest') was consistent with the confessional statements given by them. 7. The learned JCDR has also pointed out that the burden of service tax paid by the appellants was passed on to the sugar factories through 'Cenvatable' invoices and that credit thereof was taken by the latter. The learned counsel for the appellants has admitted this fact. This factual situation would also go to establish the admitted tax liability of the appellants. 8. In the aforesaid circumstances, we accept the objection raised by the learned JCDR vis-a-vis the Miscellaneous Applications, which are therefore dismissed. 9. The appellants have also contended that they are not "commercial concern" and hence did not....
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.....T. 202 (Born.). In the case of Rajasthan Spinning & Weaving Mills, it was held by the Hon'ble Supreme Court that payment of duty, whether before or after the issue of show-cause notice, could not alter penal liability under Section 11AC of the Central Excise Act. Section 11AC of the Central Excise Act and Section 78 of the Finance Act, 1994 are pari materia provisions and, therefore, the ratio of Rajasthan Spinning & Weaving Mills (supra) is applicable to the present case. The Hon'ble Bombay High Court, in the case of Shri Ram Aluminium Pvt. Ltd. (supra), followed the Apex Court's ruling and answered the following question in the negative :- "Whether in case of clandestine removal of goods the payment of part of duty subsequently made on notice by the department prior to issue of show-cause can discharge the Respondent from the rigour of provisions of Section 11AC of Central Excise Act, 1944?" We, therefore, hold that the appellants are liable to pay the penalties imposed on them under Section 78 of the Finance Act. But this decision is being rendered in appeals No. ST/256/08 & ST/7/09 only. 13. In so far as the appellant in appeal No. ST/68/09 is concer....