2017 (11) TMI 351

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..... The appellant have sought benefit of Section 80 on the ground that their transactions are recorded in their Books of Account and non-payment of Service Tax to the appellant by their client - Held that: - The liability of appellant arise by receipt of payment from the client. There cannot be a liability if payment has not been received, during the impugned order. Thus non receipt of Service Tax amount cannot come in way of their ability to pay. The fact that transactions are recorded in Books of Account is not material, as they needed declare the same in the ST-3 return - By not declaring the values in the ST-3 return they have failed to shows the correct liability, in these circumstances Section 80 is not applicable. Appeal dismissed - .....

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..... demand show-cause notice were disclosed in the Books of Account and therefore provisions of Section 73(3) of the Finance Act, 1994 are rightly invokable in this case. He further pointed out that the appellant had paid ₹ 3,26,120/- as per the Order-in-Original and also interest amounting to ₹ 6,04,517/-. He argues that with delay in payment of Service Tax by appellant was due to fact that the Service Tax amount was not paid by the service recipient and therefore the appellant was suffering from financial crises. He further argues that an option of paying 25% under the provisions of Section 78(1) of Finance Act was not given in the Order-in-Original and same has not been considered in the impugned order also. He argues that the d .....

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..... nancial hardship as service recipients were not paying the Service Tax to them. This argument of appellant does not hold much water as the Service Tax is payable on the receipt basis and therefore the appellant liable to pay Service Tax only in respect of amount received by client. In these circumstances the question of financial hardship does not arise as the liability was to be discharged on amounts received. It is also seen that the figure mentioned in the Balance Sheet do not match with the returns filed by them. The appellant have also admitted their liability to Service Tax and admitted to failure to deposit the same, in these circumstances invocation of period of limitation is justified and consequently penalties under Section 76 7 .....

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