TaxTMI 
TaxTMI 
TaxTMI 
2010 (6) TMI 131
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....f the Finance Act, 1994 (the Act). The appellants had paid 25% of the above amount in terms of first proviso to Section 78 of the Act. The appellant seeks to vacate this amount paid by them. 2. Facts of the case are that the appellants were registered with the Department for providing 'Manpower Recruitment Agency' service. They were also providing 'Tour Operator Service' by arranging vehicles for organizing tours for the benefit of the tourists. During the material period, the appellants were found to have short paid service tax of Rs 1,31,027/- (Rupees One lakh thirty one thousand and twenty seven only) under the category 'Manpower Recruitment Agency' service and had not paid service tax of Rs 3,67,332/- (Rupees Three lakhs sixty seven t....
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....s that the order of the original authority does not contain any finding of suppression of fact, fraud, willful mis-statement etc. envisaged under Section 78 to attract penalty under the said provision. It is submitted that the appellant seeks relief only as regards the penalty imposed. It is submitted that the appellants were entitled to cum-tax benefit and this relief was not claimed in the appeal. 3. He relied on the judgment of the High Court of Punjab & Haryana in CCE, Jalandhar Vs. Darmania Telecom [(2009 (14) STR 145 (P&H)] in support of the plea that no penalty was imposable in the absence of finding of fraud, collusion, willful mis-statement, suppression of facts etc. as envisaged in Section 78 of the Act. He also relies on the dec....
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....ervice. The reply furnished in paragraph 5 is extracted below: (I) It is alleged in the notice that we had contravened the provisions of section 68, 69 and 70 of the Finance Act, 1994 and Rules 4, 6 and 7 of Service Tax Rules, 1994 in as much as we have rendered tour operators service without taking service tax registration, without payment of service tax and without filing of ST 3 returns and suppressed a portion of the value of manpower recruitment services with intent to evade service tax as detailed in the show cause notice. (II) In this connection it is submitted that we have not intentionally contravened the above provisions or suppressed the value of any taxable service, even though it is true that there was some lapse on our part ....
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....ve not misappropriated any Government Funds. Under the circumstances, it will be unfair to impose any further burden on us by way of interest & penalty which will do irreparable damage to us and also adversely affect our existence in the trade. (e) When the officers of the Directorate General of Central Excise intelligence issued summons to us to produce the records we produced the records and furnished the required information and fully co-operated with the authorities. We had already paid an amount of Rs 1,95,866/- even before the issue of show cause notice . We had subsequently paid the following amounts: i. Challan No. 042/05-06 dated 31.03.2006 Rs. 1,50,000.00 ii. Challan No. 041/05-06 dated 20.04.2006 Rs. 1,09,699.00 iii. Cha....
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....apse occurred in their reply to the Show Cause Notice as well as in the submissions made during personal hearing. The assessee requested to waive the proposed penalty as they have paid the Service Tax in full. I find there is no dispute about the short payment of the Service Tax and the assessee paid Rs. 1,90,356 + Rs. 5,510/- (interest) prior to the issue of Show Cause Notice. The request of the assessee for waiver of penalty can be considered only for the amount paid by them prior to the issuance of Show Cause Notice.' 8. I find that in CCE, Jalandhar Vs. Darmania Telecom (supra), the Hon'ble High Court of Punjab & Haryana made the following observations: 'The provision under Section 78 of the Act is required to be acted upon in the abs....