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TMI Blog2015 (8) TMI 795X X X X Extracts X X X X X X X X Extracts X X X X ..... eady collected the total amount from their clients. The appellants therefore failed to obtain registration and but for the detection by the Department theycould not have discharged service tax. The appellants cannot plead for innocence for invoking Section 80. There are number of Tribunals and High Courts decisions where Section 78 penalty/under Section 11AC penalty were upheld, where there is a deliberate suppression of the facts proved with an intention to evade service tax. No justification on the appellant's plea for waiver of penalty imposed under Section 78 - Decision in the case of Kedia Business Centre Vs. CCE, Mumbai [2009 (3) TMI 85 - CESTAT MUMBAI] followed - Decided against assessee. - ST/01/2010 - Final Order No. 40448/2015 - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imposed under Sections 76 and 77 of the Finance Act by invoking Section 80 of the Act and upheld the demand and interest and penalty under Section 78 of the Finance Act. 3. Heard both sides. 4. Shri P.S. Krishnan, Sr. Manager of the Company appeared on behalf of the appellant submits on receipt of letter dated 20.07.2006 from the department they immediately took service tax registration and remitted the service tax long before issue of summons and show cause notice. He submits that the appellants are under bonafide belief that service tax is not payable and they never had any intention to evade tax. He pleaded for waiver of penalty under Section 78 of the Act. He relied upon the following case laws in support of his contention. - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice and pleaded for waiver of penalty. It is not the case of the appellants that they have voluntarily paid the service tax on their own. As rightly held by the adjudicating authority in his findings, since the appellants have not even registered with the department under service tax and not filing returns in spite of knowing fully well that the they had already collected the total amount from their clients. The appellants therefore failed to obtain registration and but for the detection by the Department theycould not have discharged service tax. The appellants cannot plead for innocence for invoking Section 80. There are number of Tribunals and High Courts decisions where Section 78 penalty/under Section 11AC penalty were upheld, where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He has also pointed out that the above argument of the learned counsel cannot be accepted, in view of the Supreme Court's order on Civil Appeal No. 6435 of 2008 [2009 (235) E.L.T. A87 (S.C.)] ( CCE v. Monarch Pipes Ltd.). It is submitted that the civil appeal was allowed by the apex court on the basis of the court's earlier decision in Dharamendra Textile Processors case and accordingly any penalty under Section 11AC of the Central Excise Act or any interest on duty under Section 11AB of the Act was not avoidable on the ground that the amount of duty had been discharged before issuance of show-cause notice. I find that, in the case of Dharamendra Textile Processors (supra), the Hon'ble Supreme Court held that penalty under Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imposed under Section 76 of the Finance Act on the assessee was set aside in identical circumstances in the case of Warna Industries Ltd. v. CCE, Pune - 2006 (4) S.T.R. 535 (Tri.-Mumbai). A similar penalty was set aside in the case of Heera Metals Ltd. v. CST, Kolkata - 2006 (4) S.T.R. 540 (Tri.-Kolkata). There are also other decisions of the Tribunal to the above effect, amongst the records filed by the counsel. The above Tribunal's decision squarely applicable to the facts of the present case as they failed to take registration and failed to discharge service tax and suppression of facts established beyond doubt and paid service tax only after the case was detected. Accordingly, I do not find any justification on the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X
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