2015 (8) TMI 1011

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....47,589.60 for rendition of such service. Notice also alleged that the appellant neither obtained registration, filed returns nor remitted service tax on the consideration received for providing the taxable service. 2. By a response dated 12.3.2007, the appellant claimed not to have  received the entire amount billed by it for rendition of the service; stated to have remitted the service tax of Rs. 7,578/- on 20.10.2005 for  the liability pertaining to  the year 2001-02; and Rs. 4,191/- vide TR-6 challan dated 20.10.2005 towards taxes pertaining to the year  2002-03. The appellant also claimed to have recovered service tax on phone bill amounting to Rs. 1,978/- for  the year 2001-02 and further that some considera....

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....ellants counsel is still on vacation and is unable to appear. This request for adjournment being unreasonable we have declined adjournment. 7. In the memorandum of appeal, the appellant urges several grounds. It is inter alia pleaded that the appellant failed to obtain registration, file returns in time and remit service tax on the consideration received for rendition of the taxable service, on account of ignorance of law and legal provisions.Therefore, there was no justification for invoking the extended period of limitation  and initiating proceedings beyond the  normal period of limitation , is the plea. Appellant also pleads that even assuming that it is liable to remit service tax, cum-tax benefit should be extended since ....

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....of its claim that Rs. 3,81,691/- was for rendition of construction  service and not security service. A mere plea without probative evidence in support of such plea would not suffice. 10. As regards the plea for cum-tax benefit, we are inclined to accept this plea. The appellant shall be entitled to cum-tax benefit. The authorities below have confirmed imposition of penalties under Section 76 and 78 as well. In view of several decisions it is clear that there is a discretion available, even prior to amendment of Section 78 for not imposing penalties under Sections 76 & 78 simultaneously. We therefore set aside imposition of penalty under Section 76 and confirm penalty under Section 78. Section 78 also requires that the assessee shou....