TaxTMI 
TaxTMI 
TaxTMI 
2008 (12) TMI 105
X X X X Extracts X X X X
X X X X Extracts X X X X
.... engaged in providing "Architects Services" (a taxable service) to their clients during the period from 2002-2003 to 2006-2007 (upto June, 2006) and had received charges from their clients for the same. 3. The Assistant Commissioner of Central Excise, Kolhapur-I Division, vide Order-in-Original dated 13.09.2007: (i) confirmed the demand of the service tax of Rs. 1,55,066/- along with interest under Sections 73 & 75 of the Finance Act, 1994; (ii) imposed penalty of Rs 1,55,066/- under Section 76 of the Finance Act, 1994; (iii) imposed penalty under Section 77 of the Finance Act, 1994 of Rs. 1,000/- for not getting registration within stipulated time limit and Rs. 1,000/- for late filing of the returns; (iv) imposed equal penalty of Rs. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... tax, by not disclosing the activity to the Department; (iii) The findings of the Commissioner (Appeals) relied upon the decision of M/s Financers Vs CCE, Jaipur reported in 2007 (8) STR 7 (Tri-Delhi) that "the imposition of penalty under both the Sections 76 and 78 of the Act, not to be imposed since the penal provisions are mutually exclusive" is not correct, as in this case suppression and evasion of service tax with guilty mind exists. This is the case of deliberate evasion of service tax by not disclosing the activity to the Department as held by the Assistant Commissioner very clearly in his order. The Commissioner (Appeals) should have upheld the penalty under Section 78 and/or reduce the penalty under Section 76 and not vise versa/....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ise, Jaipur reported in 2006 (2) STR 524 (Tri-Del) in which it was held that when no disclosure of the fact of rendering Consulting Engineering Service to Central Command Area (CAD) was made by the assessee to the Department, and only part of tax, liability to which was otherwise not disputed, paid only after inquiry conducted by the Department, plea that there was no suppression is not tenable. The charge of suppression of material facts, and imposition of penalty under Section 78 Chapter V of the Finance Act, 1994 is sustainable. It was also held that the penalties under Sections 76 and 77 of the Finance Act, 1994 for failure to furnish service tax returns in time are sustainable. 7. The learned J.D.R. also relied upon the Hon'ble Kerala....
X X X X Extracts X X X X
X X X X Extracts X X X X
....x out their own pocket; (iii) When the dispute about the levy of service tax is ultimately settled by the Hon'ble Supreme Court in 2007, the late payment of the service tax by them during the period 2002-03 to 2006-07 is bound to be viewed liberally. 9. I have carefully considered the rival submissions. I find that the constitutional validity of levy of service tax on the 'Architect Services' was challenged by the various associations and the Writs were filed in the various High Courts (including Mumbai) and as such there was no clarity about the applicability of service tax on Architect Services and various Architects had not taken service tax registration. The dispute about the constitutional validity of the service tax on the Architect....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Architect Pvt Ltd [2005 (188) ELT 455 (Tri- Delhi)]; (c) Medpro Pharma Pvt Ltd Vs CCE, Chennai [2006 (4) STR 322 (Tri.Delhi)]; (d) Shri Laxmichand Dharshi Vs CCE, Mumbai [2007 (80) RLT (CESTAT-Mum)]; (e) CCE, Kolkata-I Vs Camera World [2005 (71) RLT 292 (CESTAT- Kol.)=2006 (4) STR 462 (Tri-Kolkata)]; (f) World Eye Communication Vs CCE, Faridabad [2006 (76) RLT 334 (CESTAT-Del.)=2006 (4) STR 229 (Tri-Delhi)]; (g) Sieger Spintech Equipments Pvt Ltd Vs CCE, Coimbatore(2006 (76) RLT 922 (CESTAT-Che.)=2006 (3) STR 736 (Tri-Chennai); (h) CCE, Kolkata I Vs Malancha Photographer (2006 (1) STR 101 (Tri. Kolkata); (i) Inma International Security Academy Pvt Ltd Vs CCE, Chennai [2005 (68) RLT 395 (CESTAT-Che.)=2005 (180) ELT 107 (Tri-Chennai)];....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e provisions of Section 80 of the Finance Act, 1994 in the said case law, The Commissioner (Appeals), in the impugned order, has reduced the penalty from Rs. 1,55,066/- to Rs. 25,000/- under Section 76 and set aside the penalty under Section 78 taking cognizance of Section 80. 15. The ratio of the judgment of Kerala High Court in the case of Assistant Commissioner of Central Excise Vs Krishna Poduval cited supra by the learned J.D.R. does not apply to the facts of the present case in as much as in the cited case law, no circumstances were either pleaded or proved for invocation of Section 80, which implies that the penalty was imposable under Section 76 for failure to pay service tax and separate penalty was imposable under Section 78 for ....