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TMI Blog2016 (11) TMI 586X X X X Extracts X X X X X X X X Extracts X X X X ..... tatements submitted to the Sales Tax Department therefore I am of the view that Ld. Commissioner (Appeals) has applied his mind rightly in dropping demand after establishing that there is sale of liquor and no service tax can be demanded on such sale. Therefore I do not find any infirmity in the Ld. Commissioner’s(Appeals) order which is therefore upheld. Revenue’s appeal is dismissed - APPEAL NO. ST/86499/13 - ORDER NO. A/90780/16/SMB - Dated:- 22-9-2016 - Mr Ramesh Nair, Member(Judicial) Shri. M.P. Damle, Asstt. Commissioner(A.R.) for the Appellants None for the Respondent Order This appeal is directed against Order-in- Appeal No. PVR/11/NGP/2013 dated 15/1/2013 passed by the Commissioner(Appeals) Central Excise Cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the balance sheet and VAT payment documents and they have also submitted some sample invoices towards sale of liquor and Ld. Commissioner(Appeals) considering all these evidences with C.A. certificate came to the conclusion that there is indeed the sale of liquor which according to para 10.5 of Board Circular 27/7/2005. The relevant findings of the order of the Ld. Commissioner(Appeals) is reproduced below: 6. I find that only dispute is regarding inclusion of amount towards sale of liquor in the assessable value of their taxable service for the payment of service tax. The contention of appellant is that the amount charged by club to its members for sale of food, beverages and liquor cannot be taxed provided the documents evidencin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant is liable for penalty. I place reliance on the judgment of Hon ble Kerala High Court in case of Assistance Commissioner of Central Excise Vs. Krishna Poduval reported in 2006(1) S.T.R. 185(Ker.) upheld the imposition of penalty under both Section 76 and Section 78 ibid. The appellant has pleaded that, in any case the penalty under Section 76 and 78 of the Finance Act, 1994 are not be imposed simultaneously. I find that the provisions of Section 78 of the Act has been amended vide Finance Act, 2008 with effect from 10.5.2008 only, wherein it has been provided that if the penalty is payable under this section, the provisions of Section 76 shall not apply. The issue and the period of short payment of service is also prior to 10.5.08 th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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