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TMI Blog2018 (11) TMI 1525X X X X Extracts X X X X X X X X Extracts X X X X ..... x under bonafide mistake, since its intention to evade payment of tax was apparent from its conduct. The investigation made by the Department also reveals that appellant had not declared their Service Tax liability correctly for which he imposed penalty under Section 78 of the Finance Act, 1994 - Penalty under Section 77 to the tune of ₹ 10,000/- was also imposed as appellant had failed to furnish the periodical ST-3 returns in contravention to Section 70 of the Finance Act, 1994 - penalties upheld. Appeal dismissed - decided against appellant. - APPEAL NO. ST/85832/2018, ST/CO/85601/2018 - A/88006/2018 - Dated:- 19-11-2018 - DR. SUVENDU KUMAR PATI, MEMBER (JUDICIAL) Shri S.G. Thakur, Advocate for Appellant Shri A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 994, wherein under Section 78 equivalent amount of penalty was imposed. The same order was unsuccessfully challenged by the appellant before the Commissioner (Appeals) which was ultimately appealed before this Tribunal and the matter was remanded by the Tribunal vide its order dated 23.02.2017 to the Commissioner (Appeals) with the direction to establish the correct amount of demand after ensuring inquiry proceedings, taking into objection of the appellant which were recorded by the Commissioner (Appeals) but not dealt by him. 2.1 Commissioner (Appeals) in his order dated 29.11.2017 has accepted the appellant contention that it was due to discharge tax liability upon completion of ₹ 10 Lakhs turnover in the financial year 2008-09 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity Vs. Commissioner of Service Tax, Bangalore 2008 (9) SRS 237 (iv) Gem Star Enterprise (P) Ltd. Vs. Commissioner of Central Excise Customs - 2008 (9) STR 237 (v) Padmini Products Vs. CCE 1989 (43) ELT 195 (S.C.) (vi) ABS Inc Vs. CCE 2009 (16) STR 573 (vii) Hariala Deport Service Vs. CCE - 2009 (15) STR 277 (viii) Meghna Cement Deport Vs. CCE - 2009 (15) STR 179 (ix) CCE Vs. Sanfin - 2009 (13) STR 551 (x) Intelligent Protection Force 2007 (6) STR 248 3.1 He further submitted that there was no suppression of fact in their case for which extended period was not invokable under Section 73 of the Finance Act, since neither the Order-in-Original nor the show-cause notice had brought fort ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rk orders. Appellant also had challenged the wisdom and legality of tax assessment before the adjudicating authority and Commissioner (Appeals) in the first round of litigation and the same ground were accepted by the Commissioner (Appeals) after the matter was remanded by this Tribunal, which speaks a lots about the maturity and conversance of the appellant about Service Tax matter that excludes its claim of bonafide belief. When the appellant admitted itself that it had negotiated the price which includes Service Tax components, it is not understood as to how he believed that the tax would be paid by the service receiver. More importantly, non-payment of Service Tax collected by the appellant was detected by the Department from the point ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wing of Central Excise to pay the Service Tax dues which indicates that the said tax had not been paid voluntarily by the appellant upon bringing the matter to its notice by the Department. Such ground in show-cause notice has not been refuted by the appellant anywhere not even in the appeal memo. Admission needs no further proof and no man of ordinary prudence can say that keeping the tax component calculated by it without depositing the same in the government treasury is not an act of suppression with intent to mis-appropriate the same. Hence the order. ORDER 7. The appeal is dismissed and the order passed by the Commissioner (Appeals) is here by confirmed. Cross objection is accordingly allowed. (Pronounced in Court on 19.11. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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