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TMI Blog2014 (12) TMI 461X X X X Extracts X X X X X X X X Extracts X X X X ..... orosil Limited during the period 01.4.2000 to 31.1.2004. A show cause notice dated 04.2.2005 was issued to the appellant for Rs. 1,17,045/- along with proposed to interest, penalties, which was confirmed by the Adjudicating authority under OIO No. ANK-III/ST/SRM/09/06 dated 21.12.2006 along with interest and penalties were also imposed. On a further remand Adjudicating authority vie OIO No. ANK-III/ST/RSR/07/11-12 dated 12.01.2012 reduced the demand to Rs. 67,996/- along with interest and an equivalent amount of penalty under Section 78 of the Finance Act, 1994 was also imposed. Appellant took this OIO dated 12.1.2012 in appeal and the first appellate authority vide OIA dated 27.5.2013 allowed the appeal of the appellant on penalties under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 78, where elements of fraud, wilful misstatements and suppression etc. with intention to evade tax also exist. It was his case that even after allowing the benefit of Section 80, it cannot be said that in all such cases extended period will not be applicable. Learned AR strongly argued that appellant never approached the department that there is any confusion in the tax relating to Rent-a-Cab service. That only through the audit of M/s. Gujarat Borosil Limited it was realised that this appellant is providing taxable service. He relied upon the following case laws in support of his argument that extended period is invokable in this case:- (a) CC & CE vs. Indian Institute of Chemical Technology - [2012 (26) STR 97 (AP)] (b) Daurala Orga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 1994 made the following observations in the case of Daurala Organics vs. CCE (supra):- 15. Section 80 of the Finance Act, 1994 contains a non obstante provision which begins with the words notwithstanding anything contained in the provisions of Section 76, Section 77 or Section 78. Under Section 80, the burden is cast upon the assessee of proving that there was reasonable cause for the failure referred to in Section 76, 77 or 78, in which event no penalty would be imposable for the failure. The important point to note is that while enacting Section 80, Parliament introduced an overriding nonobstante provision which operates even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 80 cannot be regarded as being redundant or otiose. 17. Consequently, in our view the Tribunal was in error in coming to the conclusion that there would be no occasion to establish a reasonable cause within the meaning of Section 78, once, the extended period of limitation had been validly invoked under the proviso to Section 73(1). If the analogy which has been used by the Tribunal is extended, it would have to be held that Section 80 would have no application whatsoever to a case which falls within the purview of Section 78 since as we have noted, the language of Section 78 is similar to the language which is used in the proviso to Section 73(1). Accepting such an inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 80 of Finance Act, 1994. The case of Gujarat High Court in the case of Ankleshwar Taluka ONGC Land Loosers Travellers Co.Op vs. CCE, Surat (supra) relied upon by appellant was different on facts. There was a written contract between M/s. ONGC and that appellant having no service tax clause. M/s. ONGC refused to pay tax to the appellant in that case. It was specifically brought to the notice of High Court that in those circumstances the service tax could not be deposited in time. In the present case before this bench, no written contract is produced to indicate that service tax clause was not there. There is also no indication that M/s. Gujarat Borosil Limited refused to pay service tax to the appellant. There is also no evidence th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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