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TMI Blog2016 (3) TMI 670X X X X Extracts X X X X X X X X Extracts X X X X ..... he same in respect of the first show cause notice. Also the penalty can not be imposed under Section 76 because the same is not imposable after 10.05.2008 as per the provisions itself. Therefore, in view of the Tribunal decision in case of Jivant Enterprise vs. Commissioner of Service Tax, Ahmedabad [2012 (7) TMI 164 - CESTAT, AHMEDABAD], if the show cause notices are issued after the date of amendment, penalties under Section 76 and 78 simultaneously cannot be imposed and hence setting aside the penalty under Section 76 is uninterferable. - Decided partly in favour of the Revenue - Appeal No. ST/13126/2013 - ORDER NO. A/10050/2016 - Dated:- 22-1-2016 - P. M. Saleem, Member (T) For the Appellant : Shri S K Shukla, AR For the Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 's service tax liability for the period 2007-08 to 2010-11 covered under two show cause notices comes to ₹ 19,59,776/-, as detailed in the table below:- Year 2007-08 2008-09 2009-10 2010-11 Amount of sundry debtor for last F.Y. 0 771399 2010618 1879095 Billed Amount for the current F.Y. 917534 5377109 6723043 9922263 Amount of sundry debtor for the current F.Y. 771399 2010618 1879095 4769796 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were fully aware of the provisions and procedures. He therefore, strongly argued that the non-payment of service tax was intentional and if it had not been for detection by the department, the same would have escaped the tax net. Therefore, he submits that the penalties under Sections 76 and 78 are justified. 3. On the other hand, the learned Chartered Accountant appearing for Respondents submits that they are not contesting the demand of service tax liability and interest thereon. Their plea is that the imposition of penalty under Section 76 and 78 is harsh, as they were not in a position to pay the service tax amount because of their financial constraints. He submits that huge payments from the customers were outstanding as is evident ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may be reduced to 50%, as a worst case scenario. 4. On careful consideration of the arguments of both sides and perusal of the records, we observe that the Respondent had taken registration in April 2008 and was also availing CENVAT credit on the inputs. Therefore, we find force in the arguments of the learned Authorised Representative for Revenue that the Respondent was aware of his responsibilities and procedures and non-payment of service tax on due dates were not a mistake. Normally in such cases, we would have held that penalty under Section 78 is justified. However, in the peculiar facts and circumstances of this case, we find that there is enough reason to view the non-payment of service tax on due dates by the Respondents lenient ..... X X X X Extracts X X X X X X X X Extracts X X X X
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