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TMI Blog2009 (4) TMI 49X X X X Extracts X X X X X X X X Extracts X X X X ..... no intent to evade payment of service tax, which is clear from the above facts. But this aspect is not relevant to Sections 76 and 77 – so, assessee cannot escape penal liability under these provisions - ST/225/2008 - A/164/WZB/2009-CIV/SMB) - Dated:- 1-4-2009 - Shri P.G. Chacko, Member (Judicial) Shri Bharat Shemlani, Consultant for the appellant. Shri Manish Mohan, Authorized Representative (SDR) for the respondent. [Order per : P.G. Chacko, Member (Judicial)]. - After examining the records, I note that, in adjudication of a show-cause notice, the Assistant Commissioner had confirmed demand of service tax of Rs. 1,46,893/- against the assessee and imposed a penalty of Rs. 36,723.33 on them under Section 78 of the Financ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsidering their submissions, I have found a valid point in the contention raised by the assessee that the Commissioner ought not to have revised the amount of penalty under Section 78 in view of the pendency of appeal, on the same issue, before the Commissioner (Appeals). In the appeal filed by the assessee against the Assistant Commissioner's order, their grievance was against the Section 78 penalty. That appeal came to be dismissed as time-barred, but the order of the Commissioner (Appeals) has been set aside in the aforesaid remand order passed by this Bench. Consequently, the assessee's appeal against the Assistant Commissioner's order is pending before the Commissioner (Appeals). For all purposes, it should considered to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s been cited in support of this proposition. Yet another contention raised on behalf of the assessee is that they should be given the benefit of the amnesty scheme announced by the Government on 20/09/2004. That scheme was introduced for the benefit of those service providers who were yet to get registered with the Department. The present appellant was already registered with the Department on the above date and, therefore, prima facie, the amnesty scheme was not applicable to them. A judgment of the Hon'ble High Court of Rajasthan ( Union of India vs. Amit Kumar Maheshwari 2008 TOIL 626 HC-RAJ-ST) has also been cited before me in this context. It appears from this judgment that amnesty from penalty was extended to those registered s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the assessee failed to show reasonable cause for not making payment of service tax by the due date or for not filing service tax returns within the prescribed time. Before that authority also, the assessee had pleaded confusion as well as ignorance of law. The assessee has also submitted that they could not pay service tax by due date on account of not having collected such amounts from their clients. The learned DR has reiterated the relevant findings of the Commissioner. 7. After considering the submissions, I am unable to accept the plea that penalties under Sections 76 and 77 were not imposable by reason of the fact that service tax with interest had been paid prior to issuance of the show-cause notice. The plea is not supported ..... X X X X Extracts X X X X X X X X Extracts X X X X
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