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TMI Blog2014 (2) TMI 1130X X X X Extracts X X X X X X X X Extracts X X X X ..... y the appellant were ancillary to transportation. In the absence of any evidence in this regard, we are unable to accept the contention of the appellant that they are not liable to discharge service tax liability on the aforesaid activity - Penalty imposed also sustainable - Decided against assessee. Levy of penalty - non collection of service tax from the recipient of services - Held that:- Merely because the service recipient did not pay the service tax liability initially, that would not take away/obliterate the liability on the service provider to discharge the tax. If this plea is accepted, it would make the taxable event as receipt of service tax from the recipient of the service which is not the law. The law envisages payment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d consultant for the appellant submits that as per the work orders given by M/s. Western Coalfields to the appellant, the activity undertaken by them included removal of all materials in all kinds of strata with its drilling, excavation, loading, transport and dumping, spreading and dozing at specified places as per instructions of the client. However, blasting, lighting and pumping were required to be done by the service recipient. The appellant removed all the materials arising out of these processes and transported and dumped them at specific places. It is his contention that the aforesaid activity would not come within the purview of site formation and clearance, excavation and earth moving and demolition services. As a bundle of activi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the provisions of Section 80 of the Finance Act, 1994 and therefore, the same be followed in the present case also. 4. The learned Additional Commissioner (AR) appearing for the Revenue, on the other hand, rebutted these contentions. He submits that the appellant did not obtain any registration, nor did he file any returns and, therefore, it is a case of suppression of facts on the part of the appellant that led to invoking the extended period of time for confirmation of service tax demand. Once the extended period of time has been rightly invoked, the question of invoking Section 80 would not arise at all as the appellant did not prove that there was a reasonable case for the failure to pay the service tax. He further contends that ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... building, structure or road, but does not include such services provided in relation to agriculture, irrigation, watershed development and drilling, digging, repairing, renovating or restoring of water sources or water bodies. 5.1 From the above definition, the appellant's activity of drilling, excavation, etc. falls clearly within the scope of taxable service as defined in law. The very fact that the appellant has been discharging service tax liability since September, 2006 under the very same category also shows that the contention of falling outside the purview of service tax liability has been made only as a matter of convenience and not out of any conviction. Therefore, we uphold the classification of service under Site forma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tral Excise vs. Krishna Poduval (2005) 199 CTR Ker 581 had held that penalty under Section 76 is imposable for the mere default in payment of service tax and no mens rea is required to be proved. Penalty under Section 78 would also imposable in addition to the penalty under Section 76, if the five elements required for such imposition is present in any transaction. Therefore, the appellant have no case for waiver of penalty under Section 76. As regards, the penalty under Section 77 it is for violation of the provisions of the statute. The appellant had not obtained any registration nor did they discharge the statutory obligation or the service tax liability under Chapter V of the Finance Act, 1944 or the Service Tax Rules. Therefore, penal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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