2009 (7) TMI 513

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....entire Service Tax of Rs. 59.59 lakhs approx. in one case and Rs. 99.93 lakhs approx. in another case, I proceed to decide the appeal itself. 2. The said service tax stand confirmed against the appellant in respect of GTA services availed by them during the period January 2005 to September 2005. Though the appellants got themselves registered for payment of service tax on 30-1-2005, it is their contention that the issue is as to who has to pay the service tax i.e., whether the GTA service provider or GTA service recipient, was not clear from doubt. As such, imposition of penalty upon them was not justified. For the above proposition, the learned advocate has drawn my attention to CBEC Circular No. 341/18/2004-TRU, dated 17-12-2004. In Pa....

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....te that apart from the Board's circular and Tribunal's judgment referred supra, the Commissioner has himself extended the benefit to the appellant while not imposing penalty under section 78. For better appreciation, I reproduce paras 12.3 and 12.4 of the Commissioner's order. "12.3 It is clear in the case that it was noticee who suo motu came forward and applied for and obtained service tax registration, though not within time limit stipulated under section 69 of the Finance Act, 1994, read with rule 4(1) of the said Rules. It is also clear that the noticee himself deposited the service tax of Rs. 50,59,073 credited to the Government account on 28-11-2005 without any communication of demand from any service tax officer. As such, the fac....

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....y genuine or reasonable cause for such failure." 6. As is seen from the above reproduced portion of the impugned order, the adjudicating authority has come to two different conclusions as regards the appellant's bona fide in not paying the service tax. For the purpose of not imposing penalty under section 78, he has agreed that no fact was suppressed by the appellant, who have deposited the entire service tax on their own. I find, while extending the benefit of section 80, which is to the effect that no penalty shall be imposable under sections 76 and 77 or section 78, if the assessee proves that there was reasonable cause for the said failure to the provisions of section 78, he has not extended the benefit of the same while imposing pen....