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2018 (10) TMI 29 - AT - Service TaxManpower Recruitment or Supply Agency's Service - default in discharging service tax liability - default for the month of May' 2008, June 2008 and July 2008 - the appellant also did not file the returns within the stipulated time - Held that:- It is admitted fact that the appellant has been defaulting in discharge of service tax and in filing of statutory returns right from the October' 2002 and this pattern of default of payment of tax continued even in the month of May' 2008 onwards. The appellant are not disputing the duty amounts and the interest amounts payable thereon. Hence, the demands of duty and interest in all the three appeals, being uncontested by the appellant are upheld. Penalty u/s 76 of FA, 1994 - invocation of section 80 - Held that:- Admittedly, the appellant has made it a pattern to delay the payment of service tax month after month since October 2002. Further, it is not disputed that the appellant has been recovering service tax from their clients but not depositing the same immediately. Appellants were fully aware of their liability and their obligation to pay service tax in time. However, on the ground of so-called of financial crunch, they have delayed the payment of service tax - In the present appeals, however, the appellant admittedly did not pay the service tax and interest before the issuance of show cause notice. The appellants have not been able to substantiate their claim for waiver of penalty imposed under Section 76 of the Act. Therefore, their plea for waiver of the penalty by exercising discretion under Section 80 of the Act is liable to be rejected. Benefit of the 2011 amendment in Section 76 ibid - the only reason given by the appellant is that since the 2011 amendment was by way of substitution, the same should be applied retrospectively - Held that:- In the Finance Act, 2011 which brought about the amendments in Section 76 of the Finance Act, 1994, there is nothing in the amendment which says that the amendment is to be applied retrospectively - In the present case, the amendments made are neither clarificatory in character nor for correcting any obvious mistake. The changes brought about by the 2011 amendment in Section 76 ibid in respect of the amount of penalty (from ₹ 200 to ₹ 100) or percentage based penalty (from 2% to 1%) to be imposed are not to rectify any mistake or to clarify any ambiguity - the said amendment is to apply prospectively only - penalties upheld. Appeal dismissed - decided against appellant.
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