2018 (8) TMI 485

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....thority to the extent that he set aside the demand of Rs. 46,814/- under Rule 14 and penalty under Rule 15 of Cenvat Credit Rules, 2004. He has also ordered the appellant to pay interest for intervening period under Section 75 of the Act and imposed penalty of Rs. 10,000/- under Section 77 of the Act. The rest of the order was upheld. 2. Briefly facts of the case are that the appellant is engaged in providing taxable service as well as recipient of taxable service as per Section 68 (1) & 68 (2) of the Finance Act, 1994 (hereinafter referred to as the said Act) respectively read with Rule 2 (1)(d)(i) of Service Tax Rules, 1994 (hereinafter referred to as said Rules). It is alleged that the appellant has failed to discharge the service tax....

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....pon the audited balance sheet. 3. The ld. Counsel appearing on behalf of the appellant submitted that the service tax has been raised for the period from 2010-2011 to 2013 on account of aforementioned services under the category of (a) Builders Association Special Service to the extent of Rs. 3,59,844/- (b) Availment of Cenvat Credit of Rs. 46,815/- & (c) liability of service tax as recipient of service for Rs. 92,092/-. It was further submitted that the ld.Commissioner (Appeals) has ignored documentary evidences such as, bank statements submitted by the appellant. It has simply done that the appellant has not adduced the documentary evidences in support of their claim and for refund of amount. It was also held by the ld.Commissioner (Ap....

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....177 (SC). He has also relied upon the decision of the Hon'ble Supreme Court in the case of Union of India Vs. Rajasthan Spinning and Weaving Mills : 2009 (238) ELT 3 (SC), wherein it has been held as under : "One cannot fail to notice that both the proviso to sub-section 1 of Section 11A and Section 11AC use the same expressions : "....by reasons of fraud, collusion or any wilful mis-statement or suppression of facts, or contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty,...". In other words the conditions that would extend the normal period of one year to five years would also attract the imposition of penalty. It, therefore, follows that if the notice under Section 11....

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....imitation and allow the appeal with consequential relief to the appellant." Under the circumstances, the ld.Advocate has stated that the penalty is not imposable. Accordingly, he prays that the same may be set aside. 4. The D.R. appearing on behalf of the Revenue reiterated the grounds contained in the impugned order. 5. We have considered the rival submissions and have gone through the appeal records. 6. After going through the impugned order, we find that the appellant is rendered by various services, which the Revenue is attempting to classify under the Builders Special Services classifiable under Chapter Heading 65(105)(zzzu) of the Finance Act,1994. On going through the various documents enclosed in the appeal memorandum, a....