TaxTMI 
TaxTMI 
2023 (8) TMI 188
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....ant is a co-operative society registered under the Punjab Co-operative Societies Act, 1961. The Appellant is engaged in providing the canteen services to M/S GlaxoSmithKline Consumer Healthcare Pvt. Ltd. ('GSKCH Ltd.') pre19.09.2002. The employees of GSKCH Ltd. formed the present co-operative society i.e., the Appellant for supply of meals and light refreshments to the employees of GSKCH Ltd. All the employees of GSKCH Ltd. are members of the Appellant society. The Appellant is registered as a 'service provider' under 'outdoor catering services' and also under VAT. For the purposes of operation of the Appellant's canteen, GSKCH Ltd. provided space within the factory premises for running the canteen and also some materials and fixed assets to the Appellant. Also, in cases of loses in any particular financial year, the Appellant often receives subsidy from GSKCH Ltd. The Appellant serves the food items to the employees of GSKCH Ltd. in consideration of some money on which VAT was duly been discharged by the Appellant during the Relevant Period. Also, on the amount received as subsidy, no service tax was deposited by the Appellant in light of the settled law in sales tax regarding non....
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.... amount was deposited suo-moto without any insistence by the department and the same was also disclosed in its return filed on 24.10.2009 and also intimated the same to the department vide letter dated 09.11.2009. She further submitted that the Tribunal in catena of this decision has held that when there is no suppression or intention to evade payment of tax, no penalty can be imposed. For this, she relied upon the following decisions: • Commissioner Of Central Excise, Customs And Service Tax Versus M/S. Stumpp Schuele & Somappa Pvt Ltd 2018 (5) TMI 609 - CESTAT Bangalore • Commr. Of S.T., Bangalore Versus C Ahead Info Technologies India P. Ltd.2011 (8) TMI 1260 - Karnataka High Court • CST, Kolkata Versus M/S TIL Ltd.2018 (7) TMI 2190 - CESTAT Kolkata • Popular Motor Corporation Versus Commissioner Of Service Tax Bangalore Service2018 (6) TMI 1359 - CESTAT Bangalore • Commissioner Of Central Excise And Service Tax Versus M/S Adecco Flexione Workforce Solutions Ltd2011 (9) TMI 114 - Karnataka High Court • YCH Logistics (India) Pvt. Ltd. Versus C.C.E & C.S.T. -Bangalore Service Tax- I2020 (3) TMI 809 - CES....
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....as been short-levied or short-paid or erroneously refunded by reason of - (a) fraud; or (b) collusion; or (c) wilfulmis-statement; or (d) suppression of facts; or (e) contravention of any of the provisions of this Chapter or of the rules made thereunder with intent to evade payment of service tax, by the person chargeable with the service tax or his agent, the provisions of this sub-section shall have effect, as if, for the words " one year , the words "five years" had been substituted. Explanation: Where the service of the notice is stayed by an order of a court, the period of such stay shall be excluded in computing the aforesaid period of one year or five years, as the case may be. (1A) Where any service tax has not been levied or paid or has been short-levied or short- paid or erroneously refunded, by reason of fraud, collusion or any wilful mis-statement or suppression of facts, or contravention of any of the provisions of this Chapter or the rules made thereunder, with intent to evade payment of service tax, by such person or his agent, to whom a notice is served under the proviso to sub-section (1) by the C....
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....yment. Explanation 1: For the removal of doubts, it is hereby declared that the interest under section 75 shall be payable on the amount paid by the person under this sub-section and also on the amount of short payment of service tax or erroneously refunded service tax, if any, as may be determined by the Central Excise Officer, but for this sub-section. (4) Nothing contained in sub-section (3) shall apply to a case where any service tax has not been levied or paid or has been short-levied or short-paid or erroneously refunded by reason of- (a) fraud; or (b) collusion; or (c) wilfulmis-statement; or (d) suppression of facts; or (e) contravention of any of the provisions of this Chapter or of the rules made thereunder with intent to evade payment of service tax. (5) The provisions of sub-section (3) shall not apply to any case where the service tax had become payable or ought to have been paid before the 14th day of May, 2003. (6) For the purposes of this section, "relevant date" means,- (i) in the case of taxable service in respect of which service tax has not been levied or paid or has been s....
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....e payment of tax. Consequently, in our considered view, the imposition of penalty under Section 77 & 78 is not justified and bad in law. Hence, we set aside the penalty imposed on the appellant by allowing the appeal of the appellant". Similarly, in the case of The Lalit Ashok Vs. Commissioner of Central Tax, Bangalore has observed in para 6 as under: 6. After considering the submissions of both sides and perusal of records, we find that after the audit raised the objection, the appellant reconciled his accounts and paid the service tax along with interest much before the issuance of the show-cause notice. Assessee has also accepted that the CENVAT credit was wrongly taken on account of clerical mistakes committed by the officers who were handling Service Tax matters and the Finance Manager of the unit who was handling the service tax matter had also resigned. Further we find that in view of the various decisions relied upon by the appellant cited supra wherein it has been consistently held that if the service tax is paid along with interest before the issuance of the notice, then under Section 73(3) of the Finance Act, the Department is precluded from issuing the show-....