2015 (10) TMI 2461

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....ority erred in not imposing penalty under Section 76 of the Finance Act, 1994 from 18/04/2006 i.e., Rs. 200/- per day or 2% of the amount of tax payable. 3. The learned Departmental Representative would submit that the issue involved in this case is regarding service tax liability on the respondent during the period 01/04/2003 to 31/03/2007. It is his submission that an appeal filed by the respondent against the very same order-in-original, this Tribunal vide order No. A/476/14/CSTB/ CI dated 28/02/2014 is dismissed. It is his submission that the adjudicating authority has imposed a penalty of Rs. 200/- per day from 18/04/22006 which is not in consonance with the provisions of Section 76. He would draw our attention to the said section and....

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....s. It is his submission that the penalty proceedings which have been initiated against the appellant was in respect of an assessment procedure. He would submit that as per the provisions of Section 76 penalty can be imposed on the assessee, only if he is liable to pay the service tax which in his submission is application of Section 76 talks about liability to pay service tax, he would submit that at the time of passing of the impugned order there was no liability to pay service tax as the respondent paid the entire service tax liability and interest thereof. He would then read para 8 and 11 of the show cause notice and submit that the various services which have been sought to be taxed are not taxable. It is his submission that provisions ....

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....chnical inspection and certification should be related to technical inspection and not any other things. He would submit that the service tax liability on technical inspection, if gone, majority of the demand is taken care and no penalty can be imposed on such an amount. 5. We have considered the submissions made at length by both the sides and perused the records. 6. The issue to be decided in this case is whether the penalty imposed by the adjudicating authority @ Rs. 200/- per day of the default period from the due date of payment to the actual date of payment of the service tax liability is correct or not and the provisions of Section 76 needs to be applied in its entirety. 7. There is no dispute as to the fact that the very same ord....

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....able in terms of this section shall not exceed the service tax payable." 9. It can be seen from the above reproduced provisions of Section 76 of Finance Act, 1994 the penalty liability is to be calculated on the basis of Rs. 200/- for every day for the failure or @ 2% of such tax per month whichever is higher during the failure to pay service tax liability. In our considered view, when the appeal of the respondent was heard in detail and in his appeal, respondent having contested the entire order-in-original, we cannot allow the respondent to re-argue the entire case on merits, as to submit that the service tax liability does not arise on cargo handling service and technical inspection and certification service are not rendered by the resp....