2017 (9) TMI 1073

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....During the course of audit, it was detected that the appellants had provided services relating to repair of PCB assembly modules for Radio Communication Systems. Nonpayment of Service Tax was detected on scrutiny of their balance sheet for the year 2003-2004, 2004-2005 and 2005-2006 and their ledger accounts relating to job works and other records. The appellants had admitted that their engineers had visited the premises of Army Units and Army provided the necessary tooling and equipment required for the repair work. The appellants received repair charges. Hence, the allegation was that the service was taxable under the maintenance and repair services. On being asked the appellants deposited the amount of Rs. 2,07,612/- along with interest ....

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....e submitted that the appellants were registered under maintenance and repair services and were very much aware about their liability especially when they were sending the staff to the Army Unit for repair work on regular basis. The appellants have deliberately and knowingly suppressed the value of taxable service in the guise of job charges. He also pleaded that the penalty under Section 76 was attracted along with penalty under Section 78 as has been held by the Hon'ble Delhi High Court in the case of Bajaj Travels Ltd. He also relied on the following case laws:- 1. CCE, Raigad Vs. Castrol India Ltd. - 2012 (286) ELT 194 (Bom.). 2. CCE, Ludhiana Vs. Omkar Steel Tubes (P) Ltd. - 2008 (221) ELT 200 (P&H) 4. Heard the parties and....

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....e duty as also the penalty equal to the duty so determined. A party is, however, absolved of the liability to pay the entire penalty and is liable to pay the amount of penalty to the extent of 25% of the duty provided, however, that the duty as determined under sub-Section (2) of Section 11A and the interest payable thereon is paid within 30 days of communication of the order of the central Excise Officer (CEO). The appellant, admittedly, paid the duty beyond the period of 30 days from the date of the communication of the order of the CEO, namely, 02.03.2010. The balance amount was paid only on 16.09.2010. the first proviso, therefore, does not come to the appellant's assistance." Section 78(I) is pari-materia to Section 11AC and the....

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....ealers, Ludhiana) decided on 12.07.2010, wherein it was observed:- "We are of the view that even if technically, scope of Section 76 and 78 of the Act may be different, as submitted on behalf of the revenue, the fact that penalty has been levied under Section 78 could be taken into account for levying or not levying penalty under Section 76 of the Act. In such situation, even if reasoning given by the appellate authority that if penalty under Section 78 of the Act was imposed, penalty under Section 76 of the Act could never be imposed may not be correct, the appellate authority was within its jurisdiction not to levy penalty under Section 76 of the Act having regard to the fact that penalty equal to service tax had already been imposed u....