2018 (9) TMI 254

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..... r he was aware of his liabilities in the law as he was filing his returns indicating the tax liability - Since he was aware of his liabilities and was willfully not depositing the tax collected his conduct is not of simple ignorance but of will default to hold the tax money for personal gains - the conduct of Appellant cannot be justified and penalty as imposed by the commissioner needs to be upheld. Appeal dismissed - decided against appellant.
Dr. D.M. Misra, Member (Judicial) And Mr. Sanjiv Srivastava, Member (Technical) Shri R.D. Waglay, Advocate, for appellant Shri R. Kapoor, Commissioner (AR), for respondent ORDER Per: Sanjiv Srivastava Appellants are providing various taxable services namely Interior Decorator Services, De .....

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..... ner has also imposed a penalty of ₹ 96,58,517/- under the provisions of Section 78(1) of Finance Act, 1994. Since he had imposed penalty under section 78(1) he did not imposed penalty under section 76. He also gave a option to pay penalty @ 25 % of the duty demanded i.e. ₹ 48,29,259/- in terms of the third proviso to section 78(1) in lieu of penalty imposed if the same is paid within the prescribed time of thirty days. Aggrieved by the said order imposing the penalty appellant have filed this appeal. 2.0 Arguing in favour of Appeal, Shri R D Wagley Advocate submitted that they are:- i. Not contesting the demand of service tax and interest. They have already paid the said amount of service tax and interest; ii. They are in app .....

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..... sed. From the facts of the case it is quite evident that Appellant was aware of his responsibility for payment of service tax. In fact he was collecting the same from his clients, (service recipients). However instead of depositing the same he was keeping the same with himself on the pretext that he was going through financial hardships. 6.0 Hon'ble Supreme Court has held in case of: i. Madhumilan Syntex Ltd. Vs Union of India [2007 (210) ELT 484 (SC)] that "We are unable to agree with the above view of the High Court. Once a statute requires to pay tax and stipulates period within which such payment is to be made, the payment must be made within that period. If the payment is not made within that period, there is default and an appropria .....

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