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TMI Blog2008 (12) TMI 161X X X X Extracts X X X X X X X X Extracts X X X X ..... the revenue. - ST/42 OF 2008 - A/749 OF 2008/SMB/C-IV - Dated:- 4-12-2008 - A.K. SRIVASTAVA, TECHNICAL MEMBER Dr. Y.D. Banga for the Appellant. ORDER 1. During the investigations conducted by the officers of DGCEI, Mumbai Zonal Unit against M/s. Mahendra Construction Co., Mumbai, ('the respondents' herein), it was observed that they were engaged in providing Commercial or Industrial Construction service in relation to construction of new retail outlets under the various agreements with M/s. BPCL. However, they had neither obtained the service tax registration from the Department nor paid the service tax. 2. A show-cause notice dated 21-8-2006 was issued to them demanding service tax of Rs. 3,90,054 under section 73 dur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 78 at the relevant time is given below:- "Section 78. Penalty for suppressing value of taxable service.- 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) contravention of any of the provisions of this Chapter or of the rules made thereunder with intent to evade payment of service tax, the person, liable to pay such service tax or erroneous refund, as determined under sub-section (2) of section 73, shall also be liable to pay a penalty, in addition to such service tax and interest thereon, if any, payable by him, which shall not be less than, but which sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uted, paid only after inquiry conducted by the Department plea that there was no suppression is not tenable. The charge of suppression of material fact, and imposition of penalty under section 78 Chapter V of the Finance Act, 1994 is sustainable. It was also held that the penalties under sections 76 and 77 of the Finance Act, 1994 for failure to furnish service tax returns in time are sustainable. 8. I have examined the position. I find that the revenue has not filed any appeal before the Commissioner (Appeals) under section 85 of the Finance Act, 1994, against the Order-in-Original dated 31-1-2007 passed by the Assistant Commissioner, by which the Assistant Commissioner imposed the penalty of Rs. 25,000 on the respondents under section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act in the manner prescribed by the statute. 11. In the case of Mett MacDonald Ltd. cited (supra) , the party, out of the service tax demand of Rs. 9,11,414 had deposited Rs. 7,11,199 leaving the balance amount of service tax of Rs. 2,00,215 as unpaid whereas in the case before us, the respondents have paid the entire service tax along with the interest before the issuance of the show cause notice Hence the facts are distinguishable Moreover, no reference has been made to the provisions of section 80 of the Finance Act 1994 in the said case law The Commissioner (Appeals) in the impugned order, has reduced the penalty to Rs.10,000 taking cognizance of section 80 of the Finance Act, 1994. The Hon'ble Bombay High Court in the case of CCE ..... X X X X Extracts X X X X X X X X Extracts X X X X
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