TaxTMI 
TaxTMI 
2019 (6) TMI 1071
X X X X Extracts X X X X
X X X X Extracts X X X X
....t, It was found that the Appellant during the period 2007 - 08 to 2008 - 09 had rendered the "Dredging Services" but short paid the service tax during said period. That for the period 2008 - 09 the income shown in Balance Sheet was Rs. 42,02,90,252/- liable for service tax amount of Rs. 4,60,46,112/- whereas as per service tax returns the assessee has paid tax of Rs. 3,24,01,120/- . Thus they have short paid service tax amount of Rs. 1,36,44,992/-. The Appellant later paid the said amount. Also for the year 2009 - 10, the Appellant did not pay service tax or file returns. Shri Anil Ramsahay Agarwal, the Manager (Accounts) of the Appellant in his statement informed the officers that they could not pay service tax due to huge amount of expend....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... due to huge expenditure on repair and maintenance of dredgers. All the transactions were recorded in books of accounts and during audit it was known. Further that service tax amount of Rs. 2,68,84,535/- was paid even before issue of show cause notice hence there cannot be any penalty under section 76, 77 and 78. He relies upon judgment in case of Adecco Flexion Workforce Solutions Ltd. 2011 - TIOL - 635 - HC - KAR. He also submits that they are also eligible for cenvat in respect of duties paid on capital goods and service tax on input services. 3. Ms. Nitina Nagori, Ld. AR appearing for the revenue reiterates the findings of the impugned order. He further submits that the short payment of service tax during the year 2008 - 09 came during....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... find that penalty under Section 76 & 78 both cannot be imposed simultaneously in the view of Honb'le Gujarat High Court judgement in case of Raval Trading Co., Vs. CST 2016 (42) STR 210 (Guj.), accordingly, penalty imposed under Section 76 is set aside. As regard penalty imposed under Section 78, we find that as per the appellant's submission, the non payment of service tax is due to financial difficulties. It is also observed that the appellant have recorded the transaction in their books of account and from which only audit could point out the non payment of service tax. With these facts, the appellant has made out a strong case for waiver of penalty under Section 78 invoking Section 80 of the Finance Act, 1994. The Section 80 is reprodu....