2019 (1) TMI 1113

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....6-07 to 2009-10 of which Rs. 16,82,540 was as deemed recipient of 'intellectual property right services' taxable under section 65(105)(zzr) of Finance Act, 1994 on the transfer of 'technical knowhow' from M/s Morgan Construction, USA under agreement for the wherewithal to manufacture and assemble steel plant equipment and the process technology for steel rolling and steel wire rods. Besides, another Rs. 35,45,395 pertaining to the commission paid to overseas agent was held liable to tax under section 65(105)(zzb) of Finance Act, 1994 as deemed receipient of 'business auxiliary service'. The impugned order, besides confirming recovery of interest and imposing penalties, also appropriated Rs. 48,88,329 under the two heads. According to Learne....

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....the tax liability amounting to Rs. 29,12,823 had been discharged in 2007-08 and 2008- 09 and that, with the show cause notice seeking to recover a lesser amount than that on which appellant was entitled to CENVAT credit, there was no pecuniary loss to them to warrant the impression of motive to evade duty. Furthermore, it is his contention that the issue concerned interpretation and that the show cause notice failed to evidence any mala fides or any willful misrepresentation on their part. 4. Learned Authorised Representative relies upon notification no. 18/2009-ST dated 7th July 2009 in terms of which certain conditions had been prescribed for exemption from service tax claimed to be exports in view of their submission that performance of....

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....the reasonings given for invoking the extended period to demand Service Tax under proviso to Section 73(1) and also imposition of penalty under Section 77 and Section 78. I do not find any justifiable reasons warranting modification of the O-I-O dated 29/03/2012 regarding demand of service tax and also imposition of penalty under Section 77 and Section 78 of the Finance Act, 1994.' to evidence the lack of application of mind on the part of the adjudicating authority who not only relied upon in order that was non-existent but also adopted the reasoning therein. This alone should suffice to set aside the penalties. 7. Furthermore, it is apparent from the scheme of 'deemed provider of service' in section 66A of Finance Act, 1994 and Taxatio....