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2010 (8) TMI 198

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.... 1.1 The Appellant are registered with the Department as the person providing the taxable service of Erection, Commissioning and Installation since 1-7-03. In the course of audit of their records, the auditors were of the view that during the period from 1-7-03 to Sept.' 06, they had not paid service tax on certain value of the taxable service and the entire value of taxable service had not been declared in the ST-3 returns filed by them. The Appellant paid the disputed amount of service tax of Rs. 5,57,285/- alongwith interest of Rs. 1,44,909/- during Dec' 06 - March' 07 period. Subsequently however, a show cause notice dt. 24-4-08 was issued to the Appellant for - (a) Confirming the service tax demand of Rs. 5,57,2....

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....that the appellant had service tax registration, since 1-7-03, when the service tax was imposed on installation and commissioning service, that they had been paying service tax regularly and filing the ST-3 returns, that the appellant in addition to erection, installation and commissioning, also performs the jobs of fabrication, dismantling etc. and in the invoices raised by them to their clients, though they had separately mentioned the amounts charged for fabrication & dismantling, they had not paid the service tax on the amount charged for fabrication & dismantling; that it is because of this only that there is difference between the value of taxable service declared by them in their ST-3 returns on which the service tax was paid and the....

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....of taxable service with intent to evade the service tax; that the collection of service tax is on the basis of self assessment and it is the assessee who is responsible for determining his tax liability correctly and making the service tax payment on the basis of self assessment and correctly declaring the value of taxable service and service tax payable in the ST-3 returns; that since the Appellant did not disclose the full amount of taxable service in the ST-3 returns resulting in short payment remaining un-detected till it was detected during audit, the penalty under Section 78 has been correctly imposed, that since the service tax payable by the appellant was not paid by the due date, the provisions of Section 76 would be attracted, and....

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....under Section 76 is concerned, I am of the view that there is a case for invoking Section 80. 4. As regards penalty under Section 78 is concerned, the same is imposable in a case where service tax has not been levied or paid or has been short levied or short paid or erroneously refunded, by reason of fraud; or collusion; or wilful mis-statement; or suppression of facts; or contravention of any of the provisions of this Chapter or of the rules made thereunder with intent to evade payment of service tax. The question arises as to whether in the circumstances of this case, the penal provisions of Section 78 are invokable. 5. Identical words - "fraud, collusion or any wilful mis-statement or suppression of facts or contravention of ....