2017 (9) TMI 1069

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....- have been confirmed. 1.1. One appeal has been filed by the appellant M/s Japan Airlines International and other cross appeal is by the Commissioner Service Tax (Revenue). 2. The brief facts are that: i. M/s Japan Airlines International Co. Ltd. are engaged inter alia in providing service of air transport of passengers. The service of 'air transport of passenger embarking in India for international journey, in any class other than economy class', is a taxable service specified under Clause 105 (zzz) of Section 65 of the Finance Act,1994, as amended w.e.f. 01/05/2006. M/s Japan Airlines International Co.Ltd. was initially registered under service tax for services of 'Cargo handling' [taxable under Section 65 (105)(zr) of Fina....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....nput services which are not used for provision of taxable output service (including its interest). c. Demand of recovery of service tax of Rs. 8906 and education cess of Rs. 178/- on account of their non-payment on excess baggage charges. d. The show cause notice issued also proposed penalties under various sections viz under Sections 76, 77 and 78 of the Finance Act and under Rule 15 of Cenvat credit Rules of 2004 on M/s Japan Airlines International Co. Ltd. 3. This show cause notice was adjudicated vide impugned Order in Original No.191/2012 dated 28/12/2012 confirming various demands and imposing penalties as mentioned above. 4. M/s Japan Airlines International Co. Ltd. has now come before the Tribunal contesting ....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....e. iii. The entire proceeding is bad under the law, as it is without analysis of facts and relevant law at the material period. During the substantial part of material period, Rule 6(3)/(3A) was not even applicable, whereas there has been Rule 6(5) and Rule 6(3)(c) which are applicable. Whereas the Department neither on records (despite admitting that the present proceedings were on the basis of detailed examination of service tax records of the appellant), the material facts of each output activities of the Appellant and the quantum of each activities which are treated as taxable and which are treated as non taxable, and facts of details given by the appellant in their tax of each period, the department has not disputed and not mentione....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....findings given in the impugned order and further pleads in respect of the revenue's appeal that: i. Adjudicating authority failed to discuss the issues including extended period; failed to impose mandatory penalty under Section 78 of the Finance Act, 1994. ii. The adjudicating authority even after holding that the assessee had taken Cenvat credit which had no nexus with the taxable services provided by the assessee, in the impugned order failed to penalize the assessee under Rule 15 (3) of CCR, 2004. 9. We find that revenue's appeal in the present case was earlier dismissed by the Tribunal vide Final Order No.57770/2013 dated 18/09/2013. However, the department thereafter went in appeal appeal before Hon'ble Delhi High Court, who vide....