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TMI Blog2016 (7) TMI 1036X X X X Extracts X X X X X X X X Extracts X X X X ..... e Finance Act, 1994 in view of Section 80 of the Finance Act, 1994 as it existed during the period of dispute. As regards the consequential relief on excess payment of tax, we find that no substantiation in the form of documentary evidence has been produced and the claim is being made based on assertions . Accordingly, we are unable to accede to the prayer. Accordingly, appeal is allowed in so far as they relate to imposition of penalties under Section 76 and Section 78 of the Finance Act, 1994. - Decided partly in favor of assessee. - Appeal No. ST/282/2010 - Final Order No. 41224/2016 - Dated:- 13-7-2016 - Shri P.K. Choudhary, Judicial Member And Shri C.J. Mathew, Technical Member For the Appellant : Shri T.R.Ramesh, Advocate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmits that the fact that service Tax liability based on the receipt or cash basis will be less than the Service Tax liability computed reckoning the invoiced amount irrespective of its realisation is also recorded in the impugned order. This clearly demonstrates that there was no mala fide intention on the part of the appellant warranting invocation of extended period. 3.1 With regard to non-payment of service tax on TDS quantum, he submits that appellant was under bonafide belief that the liability was being worked out based on the invoice value and there was no question of adding TDS again, which will result in double accounting of the same figure since the invoiced amount includes the TDS amount, which was later deducted by the recipi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mission is further corroborated by the fact that there is no clandestine operation, in any manner, by the Appellant, which is evident from the fact that all transactions were invoiced and all payments were received only by Cheque through Bank and there was no cash transaction between the recipient of the service and the Appellant. 3.4 Further, most of the recipients of service are eligible to avail input credit of the tax paid on invoices raised by the Appellant for rendering them 'outdoor catering services' and thus the payment of Service Tax, its collection from the Service recipient and its availment as input credit thereafter results in revenue-neutral situation, which again would not attract the proviso to Sec.73(1) viz. the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant has paid the service tax and interest before issue of SCN which can be seen from the worksheet submitted by them in the paper book, duly certified by the Chartered Accountant. In fact, there is an excess payment of tax to the tune of ₹ 3,23,770/- and ₹ 8,07,252/- and pleads for adjustment of same against subsequent payments. 3.9. Appellant is not liable for payment of penalty under Section 76 of the Finance Act, 1994 inasmuch as the amounts were paid before issuance of SCN and hence the penalty needs to be set aside in terms of Section 73 (3) of the Act. The Original Authority has imposed a huge penalty of ₹ 27,12,710/- on this score, which is not warranted on the facts as stated above and under the circumsta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax paid as claimed by the Appellant), the issue to be addressed in this appeal is the imposition of penalty under Section 76, Section 78 of the Finance Act, 1994 and adjustment of excess tax paid by the Appellant. 6. Penalty under Section 76 has been invoked on the ground that the Appellant has been recurring defaulter in payment of tax and that the delay ranges around 150-400 days. In this connection, we find that there has been delay in payment of tax owing to the cash flow problems faced by the Appellant. While we are of the view that financial hardship is not a ground for non-payment of taxes, we find that the said amounts have already been disclosed in the ST-3 returns and that the tax along with interest has already been deposit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mall Inds. Corporation Limited vs. Commissioner of Central Excise Chennai - 2009 (234) ELT 413, it was held that where an amendment has been introduced to clarify the intention of a notification, the said amendment was said to be retrospective in nature. Applying the analogy to the facts of the present case, we are of the view that the amendment vide Explanation to Section 73(3) is retrospective in nature as the said amendment has declared that no penalty shall be applicable in case the tax and interest is being paid even before the issuance of Show cause notice . Accordingly penalty u/s. 76 of the Finance Act, 1994 is liable to be set aside. 7. As regards imposition of penalty u/s. 78 of the Finance Act, 1994, we find that the Learne ..... X X X X Extracts X X X X X X X X Extracts X X X X
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