9911796707
TMI Blog2009 (9) TMI 389X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of service tax and paid the balance amount of service tax for January, 2005 to March, 2006 period only on 31-3-2006 and, thereafter, they paid interest on this service tax sometime in July, 2007. The Deptt., however, issued a SCN on 24-10-2007 for imposition of penalty on the appellant under section 76 for non-payment of service tax during January, 2005-March, 2006 period by the due date. The Asstt. Commissioner vide order-in-original dated 29-4-2008 imposed the penalty under section 76 which is at the rate of Rs. 200 per day subject to the ceiling of the non-paid tax. The respondent filed an appeal before the Commissioner (Appeals) who vide order-in-appeal dated 30-10-2009, set aside the penalty on the ground that the respondent is eli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly for the month of January and February, 2005 and thereafter challenged this levy by filing a writ petition before Hon'ble Allahabad High Court. Hon'ble Allahabad High Court granted stay on collection of service tax in March, 2005 but Hon'ble High Court dismissed the writ petition on 12-8-2005. The respondent however, still did not start the payment of service tax and paid the balance amount of service tax for January, 2005 to March, 2006 period only on 31-3-2006 and, thereafter, they paid interest on this service tax sometime in July, 2007. The Deptt., however, issued a SCN on 24-10-2007 for imposition of penalty on the appellant under section 76 for non-payment of service tax during January, 2005-March, 2006 period by the due date. The A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f service tax by due date from September, 2005 onwards; that in respect of the period from September, 2005 onwards, the respondent have failed to show that there was any reasonable cause for non-payment of service tax by due date and that in view of this, Commissioner (Appeals)'s waiving the penalty under section 76 by invoking the provisions of section 80 is not correct. 2.2 Shri Bipin Garg, Advocate, ld. Counsel for the respondent pleaded that some amount of service tax pertaining to January - February 2005 was paid in March 2005, when the respondent decided to challenge the levy before Hon'ble Allahabad High Court and filed a writ petition before Hon'ble Allahabad High Court that the Hon'ble High Court stayed levy and collection by an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lly considered the submissions from both the sides and perused the records. The levy was effective from 1-1-2005 and in March 2005, on a writ petition having been filed by the respondent before Hon'ble Allahabad High Court, the levy and collection was stayed. However, the respondent's writ petition was decided against them on 12-8-2005. Even if margin of about one and half month - the time-limit for filing appeal to Hon'ble Supreme Court is given to the respondent for consulting their Counsels for going to Hon'ble Supreme Court, at least from October 2005, there is no reason for continued non-payment of service tax. The provisions of section 76 are attracted whenever there is non-payment of service tax by due date and the only situation in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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