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TMI Blog2024 (12) TMI 797X X X X Extracts X X X X X X X X Extracts X X X X ..... M/S. INTERCONTINENTAL CONSULTANTS AND TECHNOCRATS PVT. LTD. [ 2018 (3) TMI 357 - SUPREME COURT] . Whether the appellant is required to pay penalty under Section 78 of Finance Act, 1994? - HELD THAT:- The appellants are regular assessee having registered with Service Tax Department. It is only during a certain period between 2008 to 2010, the appellants did not remit the service tax due. It is an undeniable fact that the said service tax has been recovered by the appellants from their customers. As it has been recovered from their customers, the plea of financial difficulty has no substance. The appellants should have deposited the service tax at least as and when their customers paid them. Similarly, it is very difficult to believe that resignation of a couple of officers during a particular period resulted in non-payment of service tax, more so, looking into the fact that there is nothing on record to show that other activities of the company have been hampered due to such resignations. It is beyond comprehension that only payment of service tax gets disturbed. There are considerable force in the submissions of the learned Authorized Representative for the Department that the audi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in terms of Section 77 for failure to file Returns. Learned Commissioner (Appeals), vide impugned order dated 27.02.2013, upheld the OIO and rejected the appeal filed by the appellants. Hence, this appeal. 2. Shri Joy Kumar, learned counsel for the appellant, submits that the appellants had some financial difficulties during the relevant period and senior officers of the company who were in charge of the affairs of the company resigned and therefore, there was a delay in the payment of service tax. As soon as the company became aware of the non-payment of service tax, they have deposited the same during the period 02.02.2010 to 24.09.2010 and reflected the same in the monthly Returns filed for the period 2009-10. He submits that Revenue has improperly invoked extended. There was no suppression of fact etc. on the part of the appellant to cause invocation of extended period. The fact that the audit of the accounts of the company was conducted for the period April 2006 to March 2011 and that no discrepancy was found during the audit, proves that the appellant has not suppressed any facts. He further submits that the adjudicating authority proceeded to issue Show Cause Notice even tho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellants. He submits that as the service tax was not paid on their own but after continuous correspondence and summons by the Department, the plea that Show Cause Notice has been issued despite payment of service tax is not acceptable. The service tax paid require to be confirmed by a speaking order. He further submits that there is no provision that the adjudicating authority is required to give an option to the appellants to pay 25% of the penalty; in fact, it is the appellant who was required to avail the provision of Section 78 of Finance Act, 1994. 6. Learned Authorized Representative relies on the following cases and submits that the adjudicating authority has rightly imposed the penalty; the appellant having not availed the option to pay 25% of the penalty within the stipulated period, cannot take the plea at this juncture: Peninsula Security Services 2010 (18) STR 778 (Tri. Chennai) Yogi Auto Care Pvt. Ltd. 2009 (14) STR 274 (Tri. Ahmd.) Bhargava Constructions 2019 (26) GSTL 239 (Tri. All.) G.B Engineering Enterprises (P) Ltd. 2007 (8) STR 638 (Tri. Chennai) 7. Heard both sides and perused the records of the case. Brief issues that need our consideration are as to whether ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was lot of confusion in the industry about the applicability of service tax undertaken by them and that the allegations were based on extraneous facts. We find that the appellants are regular assessee having registered with Service Tax Department. It is only during a certain period between 2008 to 2010, the appellants did not remit the service tax due. It is an undeniable fact that the said service tax has been recovered by the appellants from their customers. As it has been recovered from their customers, the plea of financial difficulty has no substance. The appellants should have deposited the service tax at least as and when their customers paid them. Similarly, it is very difficult to believe that resignation of a couple of officers during a particular period resulted in non-payment of service tax, more so, looking into the fact that there is nothing on record to show that other activities of the company have been hampered due to such resignations. It is beyond comprehension that only payment of service tax gets disturbed. 10. Moreover, we find that the appellants have taken the plea that as the Audit team did not find any discrepancy, extended period cannot be invoked. We f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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