2018 (5) TMI 1522

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....r in respect of service tax demanded on the provision of service to SEZ, he has set aside the demand of service tax of Rs. 3,69,876/- and remanded the matter back to the adjudicating authority for the limited purpose of ascertaining that the provision of service in question are made to SEZ. 2.  Briefly the facts of the present case are that the appellants are engaged in providing security agency service and are availing CENVAT credit in respect of service tax paid on input service to discharge the service tax on output service and are regularly filing ST3 returns. During the audit for the period from February 2012 to March 2013, the audit raised the objection that the appellant irregularly availed CENVAT credit on input  service.....

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....y imposed under Section 78 of the Act, the same finding will apply for invoking larger period of limitation. He also submitted that in para 9 of the impugned order, the Commissioner(AppeaIs) has observed "with specific regard to imposition of penalty under Section 78, there has to be a clear determination and finding by the original authority demonstrating beyond reasonable doubt any intent to evade payment of service tax and I do not find any evidence to this effect. Accordingly, the entire penalty imposed under Section 78 of the Finance Act, 1994 is waived." He also submitted that it is well settled law that when the show-cause notice is issued based on assessee's own records, the charge of willful suppression is not sustainable. In s....

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...., then apparently the adjudicating authority can restrict the demand for the normal period, as per the main sub-section. This is clear even from the newly inserted sub-section (2A) of the said Section. It states that where any Appellate Authority or Tribunal or Court concludes that the notice under proviso to sub-section (1) is not sustainable, then the Central Excise officer shall determine the Service Tax payable for the period of 18 months, as if the notice has been issued with a limitation applicable under sub-section (1). It is clear that the said sub-section refers to only findings by the Appellate Authority. It means that when the Original Authority himself decides, that based on evidences, the ingredients of proviso clause is not av....