2016 (3) TMI 852

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....le service of Erection, Commissioning or Installation service from M/s. IMG (Asia) Machinery Co. Ltd. China this service was received and the appellant paid consideration of US dollar 6500 towards the said service to above Chinese Company. The amount of US dollar 6500 was worked out to Rs. 2,56,750/- (Rupees Two Lakhs Fifty Six Thousand Seven Hundred and Fifty only) at the rate of 1 USD=Rs. 39.5 as per the Foreign Bills Transaction Advice of M/s. Vijay Bank, Mysore dated 07.12.2007 and the demand of service tax of Rs. 30,810/- (Rupees Thirty Thousand Eight Hundred and Ten only) including Education Cess and Secondary Higher Education Cess along with interest under Section 75 of the Finance Act 1994 issued and penalties under Sections 76, 7....

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....he amount of US dollar 6500 towards Erection, Training and Roundup Trip ticket cost, they were not required to pay service tax separately on the said amount towards erection and commissioning. ii. The appellant paid service tax of Rs. 31800/- (Rupees Thirty One Thousand Eight Hundred only) along with Education Cess and Secondary Higher Education Cess and also the interest vide challans dated 19.03.2010 and 31.08.2010 and also made a request to Assistant Commissioner vide letter dated 08.09.2010 for not issuing show-cause notice in terms of Section 73(3) of Finance Act 1994. iii. Appellant believed bonafidely that the transaction of sale of goods on the basis of which customs duties were paid and the service were mutually exclusi....

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.... "Erection, Training and Roundup Ticket cost". vi. Departmental authorities themselves were confused about levy of service tax and value of taxable services and show-cause notice dated 22.07.2011 was issued only after appellant-assessee explained the value of service and paid service tax on 31.08.2010. Therefore there was reasonable cause for non payment of service tax and interest. As soon as the Department insisted on payment of service tax, they paid service tax along with interest. Therefore provisions of Section 80 of Finance Act applies to the facts of the case and no penalty is imposable. 3.1. The appellant represented by learned advocate, Shri M.S. Nagaraja has cited in support the following case-laws: a) CCE Vs. Tejas Agency ....

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....f tax has been paid by an assessee before service of notice on him under Section 73(1) and when the said assessee has informed the department of such payment in writing, the Department was not to serve any notice under Section 73(1). However it is right that Section 73(4) also makes it clear that wherever there has been such non-payment by reason of fraud, or collusion or willful misstatement or suppression of facts or contravention of any of the provisions of this Chapter or of the rules made thereunder with intent to evade payment of service tax, an assessee cannot take the benefit of provisions of Section 73(3) of Finance Act 1994. In this case Department has completely failed to prove that there was an intention to evade payment of serv....