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TMI Blog2024 (6) TMI 1180X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 78(1) there is a provision that where the service tax and interest is paid within a period of 30 days of the date of receipt of the Order of the Central Excise Officer determining the amount of service tax under sub-section (2) of Section 73, the penalty would be @ 25%. In this case, obviously, the appellants have not paid the determined amount and the interest thereon within the 30 days of the receipt of the Order-in-Original dated 31.05.2022 - there are no infirmity in the Order of the Commissioner (Appeals) in holding that 25% penalty is not applicable in the facts of the case. Alternative request for grant of benefit of the first proviso i.e. 50% - HELD THAT:- The first proviso is an exception to Section 78(1) where there is pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... angadham, Authorised Representative for the Respondent. ORDER In this appeal, the short question to be decided is whether appellant is entitled to pay the reduced penalty @ 25% under the second proviso to Section 78(1) of the Finance Act 1994 in the facts of the case or otherwise. The appellant have been providing certain services, including renting of immovable property services, to M/s Narayana Educational Society but had not obtained service tax registration nor paid the applicable service tax. 2. Based on information obtained from M/s Narayana Educational Society a show cause notice was issued proposing to treating the income received from M/s Narayana Educational Society by the appellant during the financial year 2014-15 as the basis f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... receipt from M/s Vamsadhara Educational Society have been declared in the St-3 return as also for the year 2017-18 where the taxable value declared in the ST-3 returns for the period April- June, 2017 is more than the proportionate income received for the said income tax return period. He also allowed cum duty benefit. 4. Accordingly, he recalculated the total service tax liability for the period from October 2014 to April 2016 as Rs. 2,38,972/- out of total demand confirmed by the Original Adjudicating Authority, as per the calculation below: Financial Year Rental Income from M/s Narayana Educational Society Taxable value after allowing Cum Tax Benefit Service Tax (inclusive of Cesses payable) 2014-15 (from October 2014) 6,21,816 5,53,414 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... service tax under Section 73(2). In support, he has cited the following case laws: 1. Principal Commissioner of Service Tax, Delhi-II, Vs Tops Security Ltd., [2016 (41) STR 612 (Del)] 2. Commissioner of Central Excise Customs, Surat Vs Rajeshree Dyg. Ptg. Mills (P) Ltd., [2014 (305) ELT 442 (Guj)] 3. Commissioner of Central Excise Customs, Aurangabad Vs WIPRO Ltd., [2011 (269) ELT 490 (Bom)] 7. As regards their claim of 50% penalty instead of 100%, he points out that there is nothing on record to show that they maintained the records in detail relating to the services provided to educational institutions. 8. Heard the parties and perused the documents. 9. In so far as the first issue concerned as to whether the penalty of 25% can be extende ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ys of the communication of the order of the adjudicating authority. 26. The upshot of this discussion is that an appellate authority cannot at the appellate stage give the option to an assessee to pay the reduced penalty within a time that is beyond what is stipulated in the third proviso to Section 78(1) of the Finance Act, 1994. The statute is explicit. The second proviso states that the payment of the service tax and interest has to be paid within paid within thirty days from the date of communication of order of the Central Excise Officer determining such service tax and the third proviso states that the reduced penalty that has been determined also has to be paid within the period of thirty days referred to in the second proviso. The o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner (Appeals) has made a detailed observation of various records, which were maintained by the appellant during the material time and the veracity of the documents has not been doubted by the Commissioner (Appeals) nor the Revenue has come in appeal against the observations of the Commissioner (Appeals). Therefore, it is but obvious that they were maintaining certain records and details of such transactions in respect of which the demand has been made in the show cause notice. Therefore, to that extent they are eligible for the benefit of first proviso for the period starting from 08.04.2011 upto 14.05.2015 and therefore the amount of service tax finally determined/confirmed in terms of Commissioner (Appeals) order will be liable to penalty ..... X X X X Extracts X X X X X X X X Extracts X X X X
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