9911796707
TMI Blog2025 (3) TMI 197X X X X Extracts X X X X X X X X Extracts X X X X ..... noted that there was an earlier show cause notice issued to the party and that was done after thorough scrutiny of its functioning. Therefore, the matter was well within the knowledge of the department. Any provision relating to non-filing of return or not paying tax dues does not bring the concept of 'intent to evade payment of Tax' as the same could be outcome of contentious issues on taxability, at times. As found by the Learned Commissioner (Appeals), only quantum of service tax was disputed and not the liability itself. In view of various payments made by the appellant as mentioned above, the order taking note has set aside the penalty under Section 78 of Finance Act, 1994. Conclusion - There is no error in the impugned order which se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Finance Act, 1994 is imposable but the same has not been imposed by the adjudicating authority." 2. The department feeling aggrieved even when issue has been left open and remanded by Commissioner (Appeals), is in appeal before us only on the ground that Commissioner (Appeals) held that penalty under Section 78 of the Finance Act, 1994 is not imposable. Department has filed present appeal on the following grounds reproduced as follows: - "(ii) Non imposition of penalty under Section 78 on the ground that show cause notice for earlier period was also issued is not just and proper as SCN issued earlier does not grant any immunity from imposition of penalty. The respondent not paying service tax despite SCN clearly manifest intention to ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had earlier been issued, prior to this SCN dated 14.10.2015 also. Therefore, it cannot be said that the department was not in the knowledge of the services provided by the appellant. I also find that the appellant has paid Rs. 21,52,960/- towards service tax along with interest of Rs. 4,43,689/- for late payment of service tax for the period January, 2014 to September, 2014, even prior to issuance of the demand dated 14.10.2015 decided vide the impugned order. The appellant has further paid Rs. 21,70,364/- towards service tax liability and interest of Rs. 4,81,326/-against the demand dated 14.10.2015 for the period from January, 2014 to March, 2015, prior to the issuance of the impugned order. Hence, it is not proved that the appellant had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent to evade payment of Tax' as the same could be outcome of contentious issues on taxability, at times. As found by the Learned Commissioner (Appeals), only quantum of service tax was disputed and not the liability itself. In view of various payments made by the appellant as mentioned above, the order taking note has set aside the penalty under Section 78 of Finance Act, 1994. We find that there is no error in the impugned order which set aside penalty under Section 78. Even otherwise imposition of simultaneous penalties under Section 76 and Section 78 is debatable in various High Courts. Appeal of the department is therefore liable to be rejected.
6. Appeal rejected.
(Dictated and Pronounced in the open court) X X X X Extracts X X X X X X X X Extracts X X X X
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