2013 (9) TMI 665

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....eir books of accounts, conducted by the central excise officers in May'07, it was noticed that they had not discharged their service tax liability of Rs.57,86,460/- on Business Auxiliary Service during Dec'06 to Mar'07 and Rs. 3,52,531/-. on services of Goods Transport Agency during the period Jan'05 to Mar'07. When the shortfall was painted out the appellants paid the above amounts along with interests of Rs. 2,17,676/- and Rs. 46,265/-. During the scrutiny of service tax return of Apr 06 to Sep 06 and Oct 06 to Mar'07 it was further noticed that the appellant had paid service tax liabilities of Rs.87,19,862/- only after the due dates for payments. 3. Further a short fall of Rs. 4,766/- in tax was noticed for the quarter ending Jun'07. 4....

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....he Finance Act, 1994 for the contravention of the provisions of Section 68 of the Act read with Rule 6 of Service Tax Rules, 1994." 5. The appellants have filed this appeal challenging the penalty imposed. 6. The Counsel for appellant submits that the short payment or the late payment did not occur due to intention to evade payment of duty. In the written submissions given on 25/02/2013, after hearing was over, the reason given is that they were both selling bottles as also doing service of washing bottles to M/s Balaji Industries and were facing cash flow problems because M/s Balaji Breweries were releasing only a part of the consideration for sale of bottles. 7. He submits that as soon as the shortfall was pointed out by the audit team....

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.... of such information of payment. 8. The appellants also rely on instructions issued by CBEC vide F. No. 137/167/2006-Cx-4 dated 03-10-2007 to the effect that if an assessee pays service tax amount short paid along with interest and 25% of tax as penalty within one month from the date of issue of SCN the proceedings should be taken as concluded. 9. The Counsel also submits that this is a case where the adjudicating authority should have exercised discretion under section 80 of Finance Act 1994 and waived the penalty. 10. The Counsel relies on the following decisions to buttress his argument:    i. Saumya Mining Pvt. Ltd. Vs CCE Bhopal 2012 (25) STR 150 (Tri.-Del.)    ii) CCE Raipur Vs Spectrum Coal Washeries Ltd. 201....

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....al in CCE Vs. Gowri Computers (P) Ltd in this regard. 12. The Ld. A. R. for Revenue submits that this is not a fit case for invoking section 80 of the Finance Act, 1994 because the assesse has not pleaded any ground for invoking the said section. He relies on the decision of the Tribunal in Rockwool Insulation Vs. CCE . 13. I have considered submissions on both sides. The contraventions detected against the appellant are twofold. Firstly that they short paid service tax due to certain extent, Secondly that they delayed payment of service tax after realization of the consideration. The reason given is that they were also selling bottles to the person to whom service was provided and there was delay in realizing the sale proceeds and they w....