TaxTMI 
TaxTMI 
2019 (1) TMI 1041
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.... Service Tax for the period 10/2002 to 2/2009. In some cases, appeals have reached this Bench and Final Orders have been passed. The present set of four appeals ST/399/2008, ST/455/2008, ST/466/2008 & ST/467/2008 are for consideration. 2. The appellants submitted that in all the cases, Service Tax has been paid, along with interest, but in a delayed manner. Penalties have been imposed on the appellants under Section 76 and under Section 78 of Finance Act, 1994. The appellants are contesting the penalties on the grounds that: (i) Their customers were deducting TDS for Income Tax on the total remuneration including Service Tax and there was delay in getting Income Tax refunds which sometimes took as long as three to four years. (ii) ....
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....Returns. Apparently, there is no difference in taxable value/tax declared and paid by the assessee as indicated in ST 3 Returns and taxable value/tax as indicated in investigation report." 4. Ld. AR for the Department has reiterated the findings of OIO and submitted that this Bench in Final Order 21066-21068/2018 dated 31.07.2018 has dismissed the appellant's appeal. 5. Heard both sides and perused the records of the case. 6. We find that the appellant has been continuously defaulting the payment of Service Tax over the years and periodical SCNs have been issued. The Ld. Commissioner observed that "the appellants lapse continuous to be a wilful default in paying the Service Tax. Since the default is deliberate with intent to evade ....
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.... Service Tax. Moreover, there is a penalty under Section 76 for delayed payment. Therefore, invoking of Section 78 for delayed payment in itself is not acceptable. As submitted by the appellants, we find that the penalty under Section 78 for the period 10/2002 to 8/2007 was either not proposed or dropped by Commissioner and for the period 5/2008 to 2/2009, penalty under Section 78 has not been proposed at all in the SCN. This being the situation, proposal and confirmation of penalty under Section 78 during the period 9/2007 to 10/2007 alone defies logic as there was no change in the circumstances or the procedure adopted by the appellants. 6.4. We find that Hon'ble High Court of Karnataka, in the case of Motor World, 2012 (27) S.T.R. 225....
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....nt of penalty on the ground that it is less. (7) When the assessing authority, in its discretion has held that no penalty is leviable, by virtue of Section 80 of the Act, the revisional authority cannot invoke its jurisdiction and impose penalty for the first time. 6.5. Therefore, we find that the ingredients of Section 78 are not fulfilled as no suppression, fraud etc. can be alleged where the Department is well aware of the practice adopted by the appellants and SCNs have been issued continuously. As discussed above, penalty under Section 78 was not even proposed in the subsequent SCNs. The Ld. AR has relied upon the decision of this Bench in appellant's own case (supra) and submitted that the Bench has dismissed the appeal of the a....