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TMI Blog2014 (4) TMI 638X X X X Extracts X X X X X X X X Extracts X X X X ..... y way of Engineering Consultancy but for other services rendered. As regards the penalty imposed under Section 78, Section 78 envisages imposition of penalty on account of fraud, collusion, suppression, willful mis-statement of facts and contravention of any of the provisions of the Act with an intent to evade payment of tax. If these elements are present, penalty can be imposed under Section 78. In the present case, the charge against the appellant is that in the Returns filed for the respective periods, the appellant did not disclose receipt of the consideration for the services rendered and that would clearly amount to willful mis-statement of facts. Therefore, penalty under Section 78 is correctly imposable on the appellant - Decided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able service with an intention to evade Service Tax. It was further alleged that the appellant failed to file correct and factual periodical returns in respect of the activity undertaken by them as mandated under Section 70 of the Finance Act, 1994 read with Rule 7 of the Service Tax Rules. Therefore, by invoking the extended period of time, the demand was proposed. During the investigation proceedings, the appellant led evidence before the adjudicating authority by way of invoices showing that the consideration received during the year 2002-03 and upto 31.12.2005 were not on account of any Engineering Consultancy Services rendered but on account of other reasons such as Export earnings, Erection and Installation Services. Works Contract Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they have discharged the Service Tax levied along with interest thereon for the period 2001-02 vide challan dated 2.11.2013 and, therefore, considering the payment made, the penalty should be waived. 4. The learned Addl. Commissioner (AR) appearing for the Revenue, on the other hand, points out that the adjudicating authority in para 4.6 and 4-8 has clearly recorded that the appellant did not declare the suppression of facts. In para 4.8, the adjudicating authority has also recorded that the appellant has not disputed the partial escapement of tax by paying interest on the delayed payment which also shows that he charge of suppression of facts stand established against them. It is his contention that by failing to declare the correct par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f levy of Service tax, it was their responsibility to show by way of documentary evidence that the consideration received was not by way of Engineering Consultancy but for other services rendered. In the absence of such evidence, the presumption goes against the appellant and, therefore, the adjudicating authority cannot be faulted for confirming the demand for the period 2001-02. The order of the adjudicating authority is impeccable in respect of this conclusion. 5.2 Once the demand for Service Tax is upheld, the interest liability is automatic and consequent. 5.3 As regards the penalty imposed, penalty under Section 76 is for default and delay in payment of Service Tax and no mens rea is required for imposition of penalty under sect ..... X X X X Extracts X X X X X X X X Extracts X X X X
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