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TMI Blog2018 (1) TMI 494X X X X Extracts X X X X X X X X Extracts X X X X ..... a bona fide belief that no tax was payable during the relevant period - penalty u/s 78 dropped. The appellants have not filed the returns during the material period and therefore, is liable to pay penalty u/s 77(2) which is a residuary clause and provides that any person who contravened any of the provisions of this Chapter or any Rules made thereunder for which no penalty is separately provided in this chapter, shall be liable to a penalty which may extend to ₹ 10,000/- (Rupees Ten Thousand only). Appeal allowed in part. - ST/20288/2017-SM - Final Order No. 20023 / 2018 - Dated:- 4-1-2018 - Shri S. S. Garg, Judicial Member Shri Rajesh Kumar, CA Hiragange Associates For the Appellant Shri Madhupsharan, Assistant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o only) and interest of ₹ 2,00,268/- (Rupees Two Lakhs Two Hundred and Sixty Eight only) along with penalty under 78 and late fees u/s 70 of Finance Act, 1994. The amounts paid by the service provider were appropriated. Aggrieved by the Order-in-Original, the assessee preferred an appeal before the Commissioner who vide the impugned order rejected the appeal. 2. Heard both the parties and perused the records. 3. Learned consultant for the appellant submitted that the impugned order is not sustainable in law as the same has been passed by not considering the law and the decisions rendered by the Tribunal. He further submitted that the entire service tax along with interest was paid before the issue of show-cause notice. He also s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e tax and even today the matter has not been finally settled and the same is pending before the Apex Court. It is also a fact that the appellant has paid the service tax along with interest in spite of the fact that he has not collected the same from his service recipient. Further I find that there was no suppression of fact on the part of the appellant as he has shown the rent in the ST-3 returns and he had a bona fide belief that no tax was payable during the relevant period. Further I am of the view that the decision in the case of Sree Kanya Combines is applicable in the present case, in the said case the Tribunal has held in para 6 as under which is reproduced below: 6. It is seen that if the assessee fails to avail the benefit of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d of service tax and interest thereon. Further I find that in this case the appellants have not filed the returns during the material period and therefore, is liable to pay penalty under Section 77(2) which is a residuary clause and provides that any person who contravened any of the provisions of this Chapter or any Rules made thereunder for which no penalty is separately provided in this chapter, shall be liable to a penalty which may extend to ₹ 10,000/- (Rupees Ten Thousand only). Therefore, in my view the appellant is liable to pay the penalty under Section 77 (2) and I impose a penalty of ₹ 10,000/- (Rupees Ten Thousand only) on the appellant. As far as penalty under Section 78 is concerned, in view of my discussion a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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