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TMI Blog2011 (1) TMI 736X X X X Extracts X X X X X X X X Extracts X X X X ..... bility spelt out in Section 11AC are fulfilled and payment of duty before issue of show-cause notice does not alter the liability for penalty - Appeal is disposed of - ST/72/2010 - A/112/2011-WZB/C-IV(SMB) - Dated:- 25-1-2011 - Shri Sahab Singh, J. REPRESENTED BY : Shri P.V. Sadavarte, Advocate, for the Appellant. Shri S.M. Vaidya, JDR, for the Respondent. [Order]. This is an appeal filed against the Order-in-Appeal No. SR/259/NGP/2009 dated 10-11-2009 passed by the Commissioner (Appeals) confirming the order-in-original passed by the lower adjudicating authority. 2. M/s. A.K. Constructions, the appellant, are providing Maintenance and Repair Service and they are holders of service tax registration w.e.f. 12-1-2004. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies would be imposable as per CBEC Circular No. 137/167/2006-CX-4 dated 3-10-2007. He also submitted a few decisions of the Tribunal in support of the contention that penalty should not be imposed on the appellant for delay in payment of the service tax. 4. On the other hand, the learned JDR stated that the service tax and interest was paid by the assesee only after the issuance of the show-cause notice and the department has received the information not from the appellant but from the recipient of the service on the basis of which show-cause notice was issued. He also submitted that since service tax was recovered from the service recipient they cannot claim that the service tax was not paid in time due to sickness of one of the family m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e tax registration w.e.f. 12/01/2004. Had the department not conducted the investigation it would have lost the revenue. 7. Case laws relied upon by the counsel are discussed below : 7.1 Vista Infotech v. Commissioner of Service Tax, Bangalore, 2010 (17) S.T.R. 343 (Tri.-Bang.) :- In this case Service Tax as demanded was paid by the assessee before show-cause notice but in the case before me the assessee has suppressed the fact of providing taxable service though assessee was registered with department as early as 2004. In case of suppression of fact under Section 73(1A) of Finance Act, 1994 for conclusion of adjudication proceeding, there is requirement of payment of penalty equal to 25% of Service Tax amount. 7.2 Shapoorji Pallonji ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f India v. Rajasthan Spinning Weaving Mills - 2009 (238) E.L.T. 3 (S.C.), the Supreme Court has held that mandatory penalty under Section 11AC is imposable if conditions for penal liability spelt out in Section 11AC are fulfilled and payment of duty before issue of show-cause notice does not alter the liability for penalty. Therefore, mandatory penalty under Section 78 of the Act is imposable as there was suppression of fact by assessee. 8. As regards the simultaneous imposition of penalty under Sections 76 and 78 the exclusion provided in Section 78 came into effect only from 10-5-2008 whereas the period of dispute involved in the present case is prior to this date. The Kerala High Court in the case of Assistant Commissioner of Central ..... X X X X Extracts X X X X X X X X Extracts X X X X
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