TaxTMI 
TaxTMI 
2026 (8) TMI 593
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....ner(A) has rejected the appeal of the appellant and confirmed the demand along with interest and penalties under Section 75, 76, 77 and 78. The service tax and the interest already paid by the appellant in July, 2006 was appropriated in the Order-in-Original upheld in the Order-in-Appeal. 2. Briefly the facts of the present case are that according to Revenue as per intelligence gathered by the officers of Anti Evasion branch it came to notice that appellant was a distributor of M/s Win Cable & Data Com Pvt Ltd/M/s Hathway Cable & Data Com Pvt Ltd a Multi System Operator (M. S. O) and was providing or rendering taxable service to them. In order to further investigate the matter, M/s Halthway Cable & Data Com Pvt Ltd were issued summons to....
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.... the same vide the impugned order. Hence, the present appeal. 3. Heard both the parties and perused the material on record. 4. Learned Counsel for the appellant submits that the impugned order is not sustainable in law and is liable to be set aside as the same has been passed without properly appreciating the facts and the law; and binding judicial precedents. He further submits that the Department's entire case of classification of service under BAS apparently hinges on Clause 15 of Para 4 of the agreement; he further submits that clause 15 is a standard generic good faith covenant and the Department has mis-construed the context and the contents of clause 15 of the agreement and erroneously alleged that the appellant was exclusively....
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....tablished any positive act of suppression except that the tax was paid after initiation of enquiry. He further submits that it is the settled legal position that mere failure to pay tax when there is scope for doubt does not equate to deliberate suppression to evade tax; something positive other than mere inaction on the part of the assessee is required to allege suppression. For this, he relied upon the following decisions: * CCE v. Chemphar Drugs & Liniments, 1989 (40) E.L.T. 276 (S.C.). * Uniworth Textiles Ltd. v. CCE, Raipur - 2013 (288) E.L.T. 161 (S.C.). * Anand Nishikawa Co Ltd vs. CCE, Meerut - 2005 (188) E.L.T. 149 (S.C.) * Padmini Products Limited vs. CCE-1989 (43) ELT 195 (SC). 4.2 He furthe....
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....alty for a completely different infraction under the same section is invalid. Learned counsel further submits that the appellant is entitled to the benefit of Section 80 of the Act which is a benevolent provision stating that the penalty u/s 76, 77 and 78 are not imposable if there was a reasonable cause for failure referred in the said provisions. He also submits that the appellant was under a strong, bona fide understanding that its service to MSO did not attract service tax during the disputed period and the moment taxability of the service came into the appellant's knowledge; the appellant immediately obtained registration paid tax and whereby showed to its willingness to comply with law. In support of his submissions, he relied upon th....
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....t fall under the category of BAS. We also note that since the appellant has admitted the liability of service tax and has also paid the same along with interest in July, 2006 itself; therefore, we confirm the demand along with interest which stands deposited and has been appropriated in the Order-in-Original. Now, coming to the imposition of penalties, we find that the penalty has been imposed under Section 78 by invoking the extended period of limitation under Section 73(1) but the Department has not been able to sustain the charge of suppression under the proviso to Section 73(1). We also note that the Department is duty bound to prove a positive act and deliberate concealment with intent to evade tax, whereas, in the present case neither....
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....considering the fact that the issue was relating to interpretation of commercial agreement and therefore, alleging suppression with intent to evade tax cannot invoked, therefore, we set aside the penalty under Section 78 of the Act. As regards the penalty under Section 76, we hold that once the penalty under Section 78 is imposed and penalty under Section 76 cannot imposed because both the penalties are mutually exclusive, therefore, we set aside the penalty under section 76 also. As regards penalty under Section 75(A) is concerned, we hold that the said penalty is without jurisdiction because the said section stands omitted with effect from 10.09.2004 and the said penalty has not been saved under the new Finance Act. We also find that pena....