TaxTMI 
TaxTMI 
TaxTMI 
2019 (1) TMI 914
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....f sections 76, 77 and 78 were also invoked. Interest as leviable under section 75 of Finance Act, 1994 was also demanded. The matter was adjudicated by the learned Commissioner vide his order dated 12.12.2013 wherein amount of Service Tax Rs. 72,83,917/- was confirmed against the appellant under Section 73(1) along with interest as leviable under section 75 of the Finance Act. Penalties under sections 76, 78 (1) and section 77 have also been imposed. 2. The appellants are before us against the impugned order-in-original of the learned Commissioner, Raipur. At the outset, it has been submitted by learned Counsel appearing on behalf of the appellant that the entire amount of service tax as confirmed by the impugned order has been deposited by the appellant and they are not contesting the levy of service tax on the appellant. Learned Counsel, however, stated that the appellant is a proprietorship concern, in the name of Shri Surendra Sharma who is a senior citizen and a retired Indian Air Force officer who is old and inexperienced in the business of providing of security services, and had, therefore, appointed one Shri Abhishek Kumar as field Manager to look after the day-today work ....
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....319 dated 29.05.2015 for amount of Rs. 55,083/ Challan No.00061 dated 12.05.2015 for amount of Rs. 4,00,000/ Challan No.50104 dated 28.04.2015 for amount of Rs. 2,50,000/ Challan No.00006 dated 25.04.2015 for amount of Rs. 3,50,000/ Challan No.00972 dated 24.04.2015 for amount of Rs. 10,00,000/ 20,55,083/- Total Amount Paid 72,83,918/- 4. The appellant admitted the service tax liability but what was contested was the imposition of penalties under section 76 and 78. So far as the imposition of penalty under section 76 of Finance Act, 1994 is concerned, it has been contended that the Show Cause Notice was issued to the appellant on 22.10.2012, but, an amendment in the Finance Act was made with effect from 10/05/2008 by inserting a proviso under Section 78 wherein it has categorically been provided that where the penalties are payable under Section 78, the provisions of section 76 shall not apply. It was, therefore, contested that since the above mentioned proviso to section 78 was in force when the Show cause notice was issued, the adjudication authority should not have imposed penalty on the appellant under Section 76 of the Finance Act, 1994. Learned Counsel also re....
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.... CCE, Jaipur II [2016 (44) STR 419 (Tri-Del)] 8. We have also heard learned DR who has controverted the arguments advanced by learned Counsel for the appellant and submitted that evasion of Service Tax was by the appellant and it was its responsibility to make payment of due service tax in time. It has also been impressed upon that it was only after the department acted against the appellant on the basis of a specific intelligence that the evasion of service tax could be detected and, therefore, the provisions of the extended time proviso under section 73(1) were invoked because of the element of fraud, mis-declaration, and suppression with an intent to evade payment of duty. Thus, penalty under section 78 being a mandatory penalty was necessarily to be imposed on the appellant. Learned DR has relied upon the case law in case of Union of India vs. M/s. Dharmendra Textile & Processors [2008 (231) ELT 3 (SC) wherein it has been provided that once the element required for invoking the extended time provisions under section 11AC of the Central Excise Act, 1994, has been established then, there is no discretion so far as the imposition of mandatory penalty is concerned and as such, pe....
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....d control of the appellant and in a way the appellant was making compliance of payment of the service tax through its agent, but, the agent cheated him as well as the department by not depositing the service tax amount with the Revenue authorities. In this regard, we find that the appellant did not commit fraud nor was there any mis-statement or suppression of the facts with an intention to evade payment of service tax as he was regularly paying the required amount of the service tax to his authorized representative. This indicates that there was no intention on the part of the appellant to evade payment of service tax. In our view, in such circumstances, it was not appropriate to impose penalty under Sections 76 and 78 on the appellant. In arriving at this conclusion, we are fortified by the decision of this Tribunal in the case of Hemangi Enterprises vs. CCE, Pune - I - 2015 (40) S.T.R. 945 (Tri. - Mumbai) and the relevant extract is reproduced below :- "6.3 As regards the submissions made by learned D.R. that appellant has to be penalized for the activity of the Consultant as the Consultant has been appointed as an agent and reading of Section 238 of Indian Contract Act, he bec....