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TMI Blog2014 (4) TMI 957X X X X Extracts X X X X X X X X Extracts X X X X ..... tinuously failing to pay service tax even after collecting and has paid the said tax after a long delay. We therefore hold that Section 76 is correctly invoked and penalty under Section 76 is correctly imposed. Similarly we find that ingredients of Section 78 are clearly visible in the present case. There have been suppression of facts as inasmuch as the duty was not paid on time, returns were not filed for years together after the due date and even when the returns were filed after initiation of investigation, these did not represent the facts correctly. We are therefore hold that penalty under Section 78 is also imposable - Decided against assessee. - Appeal No.ST/330/09-Mum - Final Order No. A/476/2014-WZB/C-I(CSTB) - Dated:- 28-2-2014 - S S Kang and P K Jain, JJ. For the Appellant : Shri Prasad Paranjape, Adv. For the Respondent : Shri V K Agarwal, (AR) Per: P K Jain: The appellant is a private limited company and are engaged in providing taxable services viz. Storage and Warehousing Service, Cargo Handling Service, Management Maintenance and Repair Service, Technical Inspection and Certification Service. The appellant is in the business since 1983. Some ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and appropriated the various sums and imposed penalties under Section 76, 77 78 of the Finance Act, 1994. Aggrieved by the said decision of the Adjudicating Authority, the appellant are before us. 3. Ld. advocate for the appellant at the outset did not dispute the tax liability or classification of the services. Ld. advocate for the appellant's main contention was that since the substantial amount was paid by them before the issue of show-cause cum demand notice, as per the provisions of Section 73 (3) no show-cause notice should have been issued to them. At the most a show-cause notice for a differential amount of Rs.28,64,919/- could have been issued. Ld. advocate further stated that even this amount of Rs.28,64,919/- was immediately paid by them, partly in cash and partly in CENVAT credit. In fact, they also paid 25% penalty corresponding to this amount. Ld. advocate further stated that even in respect of the part of the CENVAT credit which have been taken for the settling the said liability of Rs.28,64,919/-, a few days back they have paid the said amount in cash in order to avoid any further controversy or litigation. Ld. advocate's main contention was that it wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Secure 2011 (22) STR 517 (Kar) 8. Superstar Security Services vs. CCE 2013 (30) STR 700 (Tri-Chennai) 9. Nizam Sugar Factory vs. CCE, 2006 (197) ELT 465 (SC) Ld. Advocate further argued that in view of the said case laws, it is settled matter that no penalty can be imposed in the facts and circumstances of the case and their appeal should be allowed. 4. Ld. AR on the other hand, took us through the Adjudication order and his main contention was that the appellant did not take the registration before October 2003 and even though they were providing taxable service and after they took the registration in October 2003, no service tax return was filed till the initiation of the investigation by the DGCEI officials. Even after taking the registration, the amount deposited by the appellant was not on due dates. Only in few cases the amount was paid on due dates. Whatever amount has been paid at that time was far less than the tax collected by them or the tax liability of the appellant. Ld. AR further argued that so called as independent Chartered Accountant was acting on behalf of the appellant and appellant is responsible for misconduct of the Chartered Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his case appellant had not taken the registration initially and took registration only in October 2003. We also note that that even after taking the registration, half yearly returns of service tax were not filed. The service tax returns were filed in 2006 after initiation of the investigation by the revenue. We have also gone through the annexure to the show-cause notice which details the date of payment of service tax as also period involved. We find that except in the case of Business Auxiliary Service where the tax was paid regularly from April 2005 to March 2006, in respect of no other service, the service tax has been paid on due dates. Even wherever the tax amount has been paid, tax has not been paid for the total value of taxable service but only a small part of the service. In fact in para 4.8 of the impugned order the Adjudicating Authority has observed as under:- I find that in the present case during the period of dispute i.e. April 2003 to March 2007, the noticee only on few occasions has paid the service tax (involving an amount of Rs.21.41 lakhs) on its due date. In other cases, they have made intentional delay for the payment of tax in spite of knowing their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been made, requiring him to show cause why he should not pay the amount specified in the notice : Provided that where any service tax has not been levied or paid or has been short-levied or short-paid or erroneously refunded by reason of - (a) fraud; or (b) collusion; or (c) willful misstatement; or (d) suppression of facts; or (e) contravention of any of the provisions of this Chapter or of the rules made thereunder with intent to evade payment of service tax, by the person chargeable with the service tax or his agent, the provisions of this sub-section shall have effect, as if, for the words one year , the words five years had been substituted. Explanation - Where the service of the notice is stayed by an order of a court, the period of such stay shall be excluded in computing the aforesaid period of one year or five years, as the case may be. (1A) Where any service tax has not been levied or paid or has been short-levied or short-paid or erroneously refunded, by reason of fraud, collusion or any willful mis-statement or suppression of facts, or contravention of any of the provisions of this Chapter o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the manner specified in this section, and the period of one year referred to in sub-section (1) shall be counted from the date of receipt of such information of payment. Explanation - For the removal of doubts, it is hereby declared that the interest under section 75 shall be payable on the amount paid by the person under this sub-section and also on the amount of short payment of service tax or erroneously refunded service tax, if any, as may be determined by the Central Excise Officer but for this sub-section. Explanation 2.- For the removal of doubts, it is hereby declared that no penalty under any of the provisions of this Act or the rules made thereunder shall be imposed in respect of payment of service tax under this sub-section and interest thereon. (4) Nothing contained in sub-section (3) shall apply to a case where any service tax has not been levied or paid or has been short-levied or short-paid or erroneously refunded by reason of- (a) fraud; or (b) collusion; or (c) wilful mis-statement; or (d) suppression of facts; or (e) contravention of any of the provisions of this Chapter or of the rules ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure to pay service tax. - Any person, liable to pay service tax in accordance with the provisions of section 68 or the rules made under this Chapter, who fails to pay such tax, shall pay, in addition to such tax and the interest on that tax in accordance with the provisions of section 75, a penalty which shall not be less than one hundred rupees for every day during which such failure continues or at the rate of one per cent. of such tax, per month, whichever is higher, starting with the first day after the due date till the date of actual payment of the outstanding amount of service tax: Provided that the total amount of the penalty payable in terms of this section shall not exceed fifty per cent. of the service tax payable. 78. Penalty for suppressing, etc., of value of taxable services. Where any service tax has not been levied or paid or has been short-levied or short-paid or erroneously refunded, by reason of - (a) fraud; or (b) collusion; or (c) wilful mis-statement; or (d) suppression of facts; or (e) contravention of any of the provisions of this Chapter or of the rules made thereunder with the inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e due dates. 11. Ld. advocate has quoted a number of judgements. We have gone through these judgements. The question of applicability of the penalty under Section 76 78 read with Section 80 will depend on the facts and circumstances of each and every case, and has to be decided keeping in view the facts and circumstances of that case. In the case of Gupta Coal Field Washeries Ltd. (supra), we find that the appellant was filing the service tax returns regularly and only for the period October 2008 to March 2009 they did not file the service tax returns in time and has not paid service tax in time. However, on their own ascertainment, they filed the return and paid the entire service tax. In the present case, substantial payments and also filing of the return took place after the investigation started by the department that also based on an intelligence. 12. We have also gone through the case of the Hon'ble High Court of Karnataka in the case of Adecco Flexione Workforce Solutions Ltd. 2012 (26) STR 3 (Kar). The facts of the case are detailed in the said judgement and in view of the details given by us earlier, we find the case is distinguishable and the said case was r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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