Once the cause of default is not traced, it is not possible to determine whether that was reasonable or not. There is no whisper about deliberate breach of law by the appellant which normally is consideration while invoking penalty provision. Penalty being not automatically leviable and also no wilful breach of law is there, the matter deserves to be considered from the point of peculiar circumstances.
There is no dispute that the appellants were eligible for CENVAT credit for the amount paid as Service Tax and, therefore, this is a situation which was revenue neutral and by not paying the Service Tax immediately, appellants have lost more than Rs.26,00,000/- paid by them as interest which would not have become payable if Service Tax was paid promptly and taken as credit.
We find from the Central Excise Registration and the other documents furnished by the applicant that the Registration by Central Excise Department has been given by including PAN Number of SAIL. There is no dispute that the applicant is an unit of M/s SAIL and the other units are also part of M/s SAIL. Thus, we find that the service is being provided to self,
While considering the scope of Survey and Exploration of Mineral, Oil and Gas Service, we limited the scope to the five elements of exploration and did not consider the drilling of exploratory wells as part of that service, it has to be treated as part of Mining Service since any service in relation to Mining would come in this category.
Ld. A.R has not been able to point out any provisions to the effect that Cenvat credit cannot be taken on machine procured prior to the date of issue of registration certificate. The argument of the lower authorities seems to be that the credit entries in the register for taking credit should not have been earlier than the date of granting of registration.
Firstly, there is a legal infirmity that tax is demanded under a category of service different from the one for which demand was initially issued. There is also the issue that Clearing and Forwarding Service could be rendered using a godown made available by the service recipient. In this case the service recipient has taken godown on rent from the service provider itself.
We are of the view that even if technically, scope of sections 76 and 78 of the Act may be different, as submitted on behalf of the revenue, the fact that penalty has been levied under section 78 could be taken into account for levying or not levying penalty under section 76 of the Act. In such situation, even if reasoning given by the appellate authority that if penalty under section 78 of the Act was imposed, penalty under section 76 of the Act could never be imposed may not be correct,
The counsel for the appellant submits that in Board’s Circular No. 11/1/2002-TRU dated 01/08/2002 it has been clarified that Service Tax is not leviable on the activities of the custodian when he auctions abandoned cargo and VAT/ST is paid in respect of such cargo.
Water supply project is an infrastructure facility and a civic amenity which the State provides in public interest and not an activity of commerce or industry. Therefore, the appellants are not covered under the category of Erection, Commissioning or Installation Services.” Following the precedent decision in the case of Indian Hume Pipe Co. Ltd. (supra), we hold that the activities undertaken by the appellants does not cover under the category of Erection, Commissioning or Installation Services. Accordingly, we set aside the demand on this account in the impugned order.
In view of the presumption in the law that an penal liability can never be passed on to another person who has not committed the offence, the view taken by the Tribunal in the case of Offshore Hook-up that department has to prove that unjust enrichment would mean that some extra effort is required in addition to merely looking at the balance sheet or profit & loss account on the part of the department.
