2016 (12) TMI 396

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..../- as service tax for providing infrastructure facility to M/s. Indo Rama Cements but failed to pay the same to the Central Government. On being pointed out the appellant paid the service tax collected along with interest. Show-cause notice dated 01.04.2010 was issued for imposition of penalty on appellant. Appellant contested the show-cause notice on merits. After following due process of law, adjudicating authority confirmed the views expressed in the show-cause notice and imposed penalty under Section 78 of the Finance Act, 1994 after appropriating the amount paid by appellant towards the service tax collected but not deposited. Aggrieved by such order, an appeal was preferred which also met with the same fate. 3. Learned Counsel appe....

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....39) STR 736 (P&H) wherein the Hon'ble High Court set aside the Tribunal's order which upheld the penalty imposed under Section 78 of the Finance Act, 1994. 4. Learned D.R. reiterated the findings of the lower authorities. 5. On careful consideration of the submissions made by both sides and perusal of the records, we find that appellant herein is only contesting the penalty imposed on them under Section 78 of the Finance Act, 1994 in this appeal. The penalty imposed by adjudicating authority and upheld by first appellate authority is equivalent to the tax amount. It is undisputed that appellant had collected an amount of Rs. 50,00,000/- towards charges for extending the right to use the road for movement of men and material. The said ....

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....icable, as appellant has collected an amount which is representing service tax. In view of this, the provision of Section 78 would not apply in the case in hand. 5.5 Thirdly, we find that similar issue fell for consideration by the Hon'ble High Court of Punjab & Haryana in the case of Ajay Kumar Gupta (supra) wherein the Lordships held as under:- 7. That it would be appropriate to take into account the relevant provisions since the factum of the appellant not providing the taxable service as per Section 68 is not denied. The same reads as under : "68. Payment of Service Tax. - (1) Every person providing taxable service to any person shall pay Service Tax at the rate specified in Section 66B in such manner and within such ....

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....hall forthwith pay the amount so collected to the credit of the Central Government." 9. The penalty provision under Section 76 refers to Section 68 and the liability to pay Service Tax, is as per the said section. Section 76 reads as under : "76. Penalty for failure to pay Service Tax. - Any person, liable to pay Service Tax in accordance with the provisions of Section 68 or the rules made under this Chapter, who fails to pay such tax, shall pay, in addition to such tax and the interest on that tax amount in accordance with the provisions of Section 75, a penalty which shall not be less than [one hundred rupees] for every day during which such failure continues or at the rate of [one per cent] of such tax, per month, whichever i....

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....e rules made thereunder with the intent to evade payment of Service Tax, the person, liable to pay such Service Tax or erroneous refund, as determined under sub-section (2) of Section 73, shall also be liable to pay a penalty, in addition to such Service Tax and interest thereon, if any, payable by him, which shall be equal to the amount of Service Tax so not levied or paid or short-levied or short-paid or erroneously refunded : Provided that where true and complete details of the transactions are available in the specified records, penalty shall be reduced to fifty per cent of the Service Tax so not levied or paid or short-levied or short-paid or erroneously refunded : Provided further that where such Service Tax....

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.... penalty have also been paid within thirty days or ninety days, as the case may be, of communication of the order by which such increase in Service Tax takes effect : Provided further that if the penalty is payable under this section, the provisions of Section 76 shall not apply." 11. Once the Service Tax was not leviable under Section 68 at that point of time and the liability was only to deposit the tax under Section 73A(2), which has been done on 15-11-2008, after delay, but due to the service being not taxable at the relevant time when the invoices were raised, we are of the opinion that the case would not fall under the provisions of Section 78 for invoking of the penalty, as has been held by the Tribunal. It was the catego....