TaxTMI 
TaxTMI 
2014 (10) TMI 61
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....05. After making the compliance during the initial period, the appellant defaulted in depositing the amount of Service Tax collected as well as also defaulted in deposit of interest w.e.f. 10.4.2006. The Revenue in the course of Audit, sometime in the year 2009, detected the non-compliance by the appellant. On such pointing out by the Revenue, the appellant deposited the total amount of tax in arrear along with interest and they have intimated to the department on 11.1.2010. On the allegation of suppression of facts by Revenue, on the appellant, a show-cause notice dated 5.6.2010 was issued alleging violation of the provisions of Section 68 read with Rule 6, Section 17 read with Rule 7 for the period 2006-07 upto Sept.2009 and it was propos....
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....ual to tax was imposed under Section 78 of the Finance Act, 1994 along with option to pay 25% of the penalty under Section 78, which was paid within 30 days from the said order. 2.2 Being aggrieved by the order, the appellant preferred appeal before the Commissioner (Appeals). The Commissioner (Appeals) was pleased to uphold the Order-in-Original relying on the ruling of the Hon'ble Kerala High Court in the case of Assistant Commissioner of Central Excise Vs. Krishna Poduval - 2006 (1) STR 185 (Ker), wherein it was held that both the penalty under Section 76 and 78 are for different violations and imposed for default in making payment of Service Tax. However, the penalty under Section 76 was restricted upto 10.5.2008, when under Sectio....
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....ourt has considered and distinguished the decision of Hon'ble Kerala High Court in the case of Krishna Poduval (supra) recording the finding that Section 76 applies to a case where a person is not either registered himself with the Central Excise department or registered but not paid tax for the activity which he is carrying on, whereas the penalty under Section 78 is for deliberate default of the provisions of Finance Act, 1994. It is further held that the proviso introduced in Section 78 w.e.f. 10.5.2008, being clarificatory in nature, has retrospective effect. 4. The learned Supdt. (AR) appearing for the Revenue supports the impugned order and states that in view of the deliberate default case established from the facts and circumst....
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....he provisions of Finance Act, 1994 and the Rules is made out against the appellant, as the appellant have not cared even to file the return or to pay tax even at the belated date, failing the compliance dates. I further agree with the Hon'ble Karnataka High Court's decision in the case of Motor World (supra) that when once the ingredients of Section 78 are established and there is no reasonable cause for failure, Section 80 is not attracted. Then the authority has to impose a minimum penalty of the amount of Service Tax sought to be evaded and the maximum is double the said amount. Here, there is no discretion, which is vested with the authority. The discretion is only confined to impose a penalty above the minimum and less than the....