2017 (3) TMI 1292

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.... right to use the trade mark "OMAXE", which was registered in his name, and received payment of consideration along with an annual royalty. Revenue took the view that such transfer of the right to the use of the trade mark is liable to payment of service tax under the category of intellectual property service falling under Section 65(55)(b) of the Finance Act, 1994. In the impugned order, demand of service tax stands confirmed to the tune of Rs. 1,20,85,135/- along with interest under Section 75. Penalties have also been imposed under Section 76 and 78. The service tax demanded stands already deposited along with interest as well as 25% of the penalty imposed under Section 78. 2. In the present appeal, the submission of the appellant is ....

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....r such situations. 4. Heard Shri P.K. Sahu, ld. Advocate for the appellant and Shri Ranjan Khanna, ld. DR for the Revenue/Respondent. 5. It is not in dispute that the entire service tax covered in the dispute stands paid by the appellant before issue of show cause notice. The interest involved also stands fully paid. The appellant is not challenging the demand of the service tax. Their only submission is to waive the penalties imposed upon them under Sections 77 and 78. 6. We find that the issue whether penalty is imposable, where the short levied duty is already deposited by the assessee before issue of show cause notice, has been considered and settled in various decisions, some of which have been cited by the appellant. In the c....

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....Central Excise v. Gaurav Mercantiles Ltd. [2005 (190) E.L.T. 11] Bombay High Court have all taken the view that where duty imposed has been deposited before issuance of the show case notice under Section 11AC of the Central Excise Act, 1944, no action under Section 11AC of the Act, 1944 should be initiated or taken. 12. Further the Karnataka High Court while considering the question opined that where the party even before issuance of show cause notice has deposited the duty, the inference can reasonably be drawn that there was no question of any fraud, misrepresentation or suppression of fact, which is essential foundation for levy of penalty under Section 11AC of the Act of 1944, at all. In coming to this conclusion, the Karnataka High ....