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TMI Blog2014 (12) TMI 328X X X X Extracts X X X X X X X X Extracts X X X X ..... not paid service tax at all and the appellant had also not paid the correct amount of service tax on the consideration received for the services rendered by them over a few years. In such a situation, penalty u/s. 78 is imposable and has been correctly imposed. Coming to penalty u/s. 76 of the Finance Act, 1994, there are decisions taking a view that penalties are imposable u/s. 76 & 78 of the Finance Act, 1994 prior to April, 2008 when Section 78 was amended to provide for no penalty u/s. 76 when penalty has been imposed u/s. 78. However, in this case, taking note of the fact that total amount short-paid is less than ₹ 50,000/- and it has occurred for a period of three financial years and obviously the appellant is not a big servi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gistration as well as failed to pay service tax on the said amount. The said income was taxable under the category of Outdoor Caterer service. Thus there was a short payment of service tax of ₹ 28,397/- on the income of ₹ 2,29,750/- under the said category. It also appeared that the abatement granted under Notification No. 1/2006-S.T., dated 1-3-2006 is conditional and nothing was found on records that the appellants have fulfilled the said condition and therefore the abatement could not be granted to them. Accordingly a SCN was issued to the appellants and the same was adjudicated by the adjudicating authority. During the adjudication proceedings, the adjudicating authority has extended the benefit of small scale exemption i. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f service tax and paid the same with interest. The service tax amount of ₹ 49,110/- and interest of ₹ 21,994/- was paid on 2-8-2008 and 17-2-2009, whereas show cause notice was issued on 20-4-2009. Therefore, he submits that in this case penalties under Sections 76 and 78 were not imposable since the appellants had paid the entire amount of service tax with interest. He relied upon the Circular issued by the Board and several precedent decisions to support his submission. 5. The ld. AR on the other hand, submitted that but for the investigation carried out and verification of records, the fact of short-payment of service tax would not have been detected at all. Therefore, he submits that suppression has been rightly invoked a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... penalty u/s. 76 of the Finance Act, 1994, there are decisions taking a view that penalties are imposable u/s. 76 78 of the Finance Act, 1994 prior to April, 2008 when Section 78 was amended to provide for no penalty u/s. 76 when penalty has been imposed u/s. 78. However, in this case, taking note of the fact that total amount short-paid is less than ₹ 50,000/- and it has occurred for a period of three financial years and obviously the appellant is not a big service provider. Moreover, as soon as the omission was pointed out, the appellant paid the service tax with interest. Further, it is also found that the appellant had correctly calculated the service tax payable by them with interest. The action of the assessee for verification ..... X X X X Extracts X X X X X X X X Extracts X X X X
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