2018 (3) TMI 504 – CESTAT CHENNAI – TMI – Renting of immovable property service – Whether appellant is liable to pay service tax under the category of ‘maintenance of repair service’? – penalty – Held that: – the department had issued an earlier show cause notice on the very same set of facts and allegations. Therefore, they cannot allege suppression of facts with intent to evade payment of service tax – the adjudicating authority is directed to recalculate the demand giving the benefit of CENVAT credit if any.
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The contention of the ld. AR that the appellant had not furnished details as required by the department does not hold water for the reason that the letter requesting for details has been issued by the department only on 13.12.2007 which is much after the normal period. Taking these facts into consideration, we are of the view that the penalty imposed is unwarranted and requires to be set aside.
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Appeal allowed in part. – ST/152/2010 – A/40119/2018 – Dated:- 16-1-2018
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for a different period the very same issue was decided by the Tribunal in the appellant s own case vide Final Order No.40866/2017 dated 25.5.2017. The Tribunal had upheld the demand, interest and set aside the penalty and also directed for denovo adjudication for the limited purpose of recalculation of demand giving the benefit of CENVAT credit. Ld. consultant argued that the present show cause notice is for a subsequent period and that the department has invoked the extended period of limitation alleging suppression of facts. That the appellant was under bonafide belief that they are not liable to pay the service tax since the maintenance charges were collected along with rent and during the relevant period, the levy of service tax on renting of immovable property was under dispute. The appeal filed by the appellant against the adjudication order for the earlier period was pending before the Tribunal. That since the appellant was still litigating the issue, it cannot be said that app
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rimarily set up for promoting IT and IT enabled services. This being so, nefarious intention to evade payment of service tax cannot be expected from them. In the present case, the department had issued an earlier show cause notice on the very same set of facts and allegations. Therefore, they cannot allege suppression of facts with intent to evade payment of service tax. The contention of the ld. AR that the appellant had not furnished details as required by the department does not hold water for the reason that the letter requesting for details has been issued by the department only on 13.12.2007 which is much after the normal period. Taking these facts into consideration, we are of the view that the penalty imposed is unwarranted and requires to be set aside, which we hereby do. 6. In the result, following the decision of the Tribunal in the appellant s own case vide Final Order No.40868/2017 dated 25.5.2017, the demand is upheld and the adjudicating authority is directed to recalcul
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