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TMI Blog2022 (12) TMI 1191X X X X Extracts X X X X X X X X Extracts X X X X ..... 4) should have been imposed. Section 78 also provides that if the penalty under Section 78 is imposed, no other penalty under Section 76 could have been imposed on the appellant. Accordingly the contention raised by the learned AR that there was malafide intention to evade payment of duty cannot be upheld. Secondly, Section 73(3) clearly provides that payment of tax could have been on own violation or on being pointed out by the department. Then also no notice could have been issued. Appeal allowed. - Service Tax Appeal No. 87715 of 2019 - FINAL ORDER NO. A/86171/2022 - Dated:- 6-12-2022 - MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL) None for the Appellant Shri Prabhakar Sharma, Superintendent, Authorised Representative for the Respondent ORDER This appeal is directed against Order-in-Appeal No. NA/GST CX/A-III/MUM/48/2019-20 dated 24.05.2019 passed by the Commissioner of GST Central Excise (Appeals-III), Mumbai. By the impugned order, following has been held:- ORDER 9. In view of the above findings, I uphold the Order-in-Original No. ME/JC/SS/04/2017-18 dated 09.03.2018 passed by the Joint Commissioner, GST CX, Mumbai East Commissionerate a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... harging service tax on reverse charge basis in respect of business auxiliary services received from abroad and show cause notice dated 15.10.2020 for the period 2005-10 was issued to the appellant. 2.4 Subsequent to this show cause notice, appellant continued the same practice and they were not paying the service tax in respect of the same services thereafter. From the overseas supplier and from the details submitted by the appellant, it was observed as follows:- Taxable services from the overseas service providers Invoice Amount Service Tax payable Service Tax paid Service Tax short/exces s paid Interest payable Legal Professional 234967572 24201660 24201672 12 0 BAS 54734718 5637676 1508372 -4129304 423601 IPR Royalty 29951229 3084977 3084977 0 274146 Online Data R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nded for contraventions enumerated herein above and for contravention of the provisions of Section 66, Section 67, and Section-68, of Chapter-V of the Finance Act, 1994. This show cause notice was adjudicated by the Joint Commissioner by his order referred in para 1.2 above and appeal filed by the appellant was dismissed as per the impugned order. Hence this appeal. 3.1 When the matter was listed for hearing on 30.06.2022, 19.10.2022 and today, none appeared for the appellant. Since the issue is in a very narrow compass and the appellant is only challenging the imposition of penalty under Section 76 of the Finance Act, 1994, I have proceeded with the matter after hearing learned AR for the Revenue who reiterates the findings recorded in the impugned order. 4.1 I have considered the impugned order along with the submissions made in appeal. 4.2 For upholding the order of original authority, Commissioner (Appeals) has observed as follows:- 8. I note that the impugned Order which is appealed against is issued on adjudication of the Show Cause Notice issued to the Appellants under Section 73(1) of the Act for the period F.Y 2011- 2012, which subsequent to the on the S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /- for the period 2011-12, resulting into a short payment to the extent of Rs.41,29,290/-. This short payment of service tax was on account of Business Auxiliary Services' received from foreign commission agents towards sale of products outside India. Since the Appellant had not paid the fees to these foreign commission agents and did not discharge service tax on the same. Upon provisioning for receipt of these services in the books of account, the Appellant voluntarily discharged service tax of Rs.41.29,290/- along with interest of Rs.6,97.747/- under the reverse charge mechanism. The payment was made vide challan no. 624 on July 11, 2012. A copy of the said challan no. 624 dated July 11, 2012 is hereto annexed and marked as Exhibit B . 4.4 Section 73(3) of the Finance Act, 1994 reads as follows:- (3) Where any service tax has not been levied or paid or has been short-levied or short-paid or erroneously refunded, the person chargeable with the service tax, or the person to whom such tax refund has erroneously been made, may pay the amount of such service tax, chargeable or erroneously refunded, on the basis of his own ascertainment thereof, or on the basis of tax as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect in his observation As mentioned in the Show Cause Notice. was only after verification of the details submitted by the Appellants, the short payment of Service Tax liability was detected, which otherwise would have gone undetected which takes the colour of malafide intent and not a voluntary payment , then penalty should have been imposed under Section 78 of the Finance Act, 1994. Hon ble Supreme Court has in the case of Rajasthan Spinning Weaving Mills [2009 (238) ELT 3 (SC)] specifically held that if the ingredients for invocation of extended period are present, then mandatory penalty as provided under Section 11AC of the Central Excise Act, 1944 (corresponding to Section 78 of the Finance Act, 1994) should have been imposed. Section 78 also provides that if the penalty under Section 78 is imposed, no other penalty under Section 76 could have been imposed on the appellant. Proviso to Section 78 reads as follows:- (1) Where any service tax has not been levied or paid or has been short-levied or short-paid or erroneously refunded, by reason of (a) fraud; or (b) collusion; or (c) wilful mis-statement; or (d) suppression of facts; or (e) contrave ..... X X X X Extracts X X X X X X X X Extracts X X X X
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