9911796707
TMI Blog2010 (5) TMI 268X X X X Extracts X X X X X X X X Extracts X X X X ..... Company Ltd. (SCCL), a Central Public Sector Undertaking, and provided the services, of blast hole drilling, blasting, excavation, loading, transportation dumping, etc. of overburden in open cast coal mines, to SCCL during the period from 16-6-2005 to 31-3-2006, without following statutory formalities including payment of service tax. After due process of law, the Commissioner found that though the appellants had been engaged by SCCL under work orders dated 6-10-2003 and 16-10-2004 prior to introduction of service tax on the services of "site formation and clearance, excavation and earthmoving and demolition" on 16-6-2005, the work orders had pro vided for the appellants paying the duties and taxes payable to various Governments. The appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 76 of the Act for delay involved in obtaining registration, payment of service tax and filing returns could not be imposed ordinarily, "unless the party obliged either acted deliberately in defiance of law or was guilty of conduct, contumacious or dishonest or acted in conscious disregard of its obligation", as decided by the Hon'ble Supreme Court in the case of M/s. Hindustan Steel v. State of Orissa [1978 (2) E.L.T. J159 (S.C.) = (1972) 83 JTR 26]. The delay involved in the instant case was due to the circumstances beyond the assessee's control on account of huge financial involvement and as a matter of policy to be settle at higher level for the client company, SCCL. They relied on the following case laws in support of the claim that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the appellants had suppressed the fact of their rendering taxable service from the department with intention to evade payment of service tax. The appellants had failed to pay the interest accrued on the arrears of tax. Despite their promise at the time of personal hearing, the appellants had not paid the interest before adjudication. The Commissioner, therefore, felt that the assessee did not deserve any sympathetic consideration like waiver of penalty under Section 80 of the Act. 6. We note that in the case of Air Express Courier Services (supra), the Tribunal had vacated penalty imposed on the assessee finding that the same was imposed solely for its failure to file returns in time. In the case of Top Detective and Security Service P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellants herein paid most of the tax due before is sue of show cause notice and the balance dues before the adjudication the Commissioner observed as follows in the impugned order "During the written submissions made during the personal hearing, the authorized representative gave the promise that the interest involved would be paid and particulars intimated to this office, but had not kept the promise till date i.e., (more than 2 years after the due date) and hence, I feel that the assessee does not deserve any sympathetic consideration like waiver of penalty under Section 80 of the Finance Act, 1994." We find that the assessee has been consistently pleading that owing to the huge liability involved and as the work order placed on them ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee for any failure referred to in the said provisions if the assessee proves that there was reasonable cause for the said failure." As per provisions of Section 80, no penalty shall be imposable on the assesse for any failure referred to in Sections 76, 77 or 78 if the assessee proves that there was reasonable cause for the said failure. We find that the Commissioner has not quantified the amount of penalty though the appellants had paid the entire amount of tax due before adjudication. The appellants had cited the Apex Court judgment in the case of Hindustan Steel v. State of Orissa [1978 (2) E.L.T. J159 (S.C.) = (1972) 83 ITR 26] in support of the plea that no penalty was imposable unless the persons concerned had acted deliberat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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