2009 (11) TMI 227

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....ti Cable, Gulbarga rendered taxable services classifiable under 'Cable Operator Service' during the period 16-8-2002 to 31-12-2003 without following the statutory formalities including payment of service tax. Adjudicating the show-cause notice dated 27-3-2006, the Assistant Commissioner of Central Excise, Gulbarga demanded service tax of Rs. 90,316 (Rupees Ninety thousand three hundred and sixteen only) including education cess as well as applicable amount of interest for the delay in payment of tax due. He also imposed a penalty of Rs. 90,316 (Rupees Ninety thousand three hundred and sixteen only) under section 76 of the Act. The respondents had discharged the service tax liability found in the order of original authority before th....

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....tion and the levy of penalty was mandatory. The Apex Court also observed that mens rea was not an essential ingredient for imposition of penalty. The penalty imposed under section 76 of the Act was mandatory like the penalty envisaged under section 11AC of the Central Excise Act. The penalty imposed by the original authority had to be restored. The appeal relied on several case laws and mainly the decisions in the case of Larson & Toubro v. CCE 2003 (161) ELT 827 (Trib. - Mum.) and CCE v. Toshi Auto Inds. (P.) Ltd. 2005 (183) ELT 48 (Trib. - Delhi) wherein imposition of penalty under section 11AC was upheld in cases of payment of duty not paid initially, but paid before the issue of show-cause notice. It is also submitted that in the case o....

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....ce tax cases. 6. Learned Counsel appearing for the respondents submits that since the respondents had paid the tax due before the issue of show-cause notice in terms of section 73(3) of the Act, the department was precluded from initiating any penal action against the respondents. 7. I have also heard the learned JDR, who reiterates the grounds taken in the appeal. 8. I have considered the case records and the rival submissions. In the instant case, following a visit of the officers of the department, the respondents, a proprietary concern, registered with the Gulbarga Central Excise Division as a provider of service under the category 'Cable Operator Service' in the year 2002. They also paid service tax for the period endi....