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2019 (6) TMI 1071 - CESTAT AHMEDABADShort payment of service tax - dredging services - period 2009 -10 - non-payment of service tax for the period 2009 -10 and also non-filing of returns due to financial problem - Extended period of limitation - penalty - HELD THAT:- The fact remains that the Appellant had recorded all the transactions in books of accounts and produced the same before the audit officers during audit. However, the appellant failed to file necessary periodical ST-3 returns to the department, therefore, the fact regarding non payment of service tax was not brought to the notice of department. Therefore, extended period is rightly invoked by the lower authority; accordingly, the demand majority of which amount paid by the appellant is sustainable. Penalty u/s 76 and 78 of FA - HELD THAT:- The 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 (2) TMI 172 - GUJARAT HIGH COURT], accordingly, penalty imposed under Section 76 is set aside - As regard penalty imposed under Section 78, 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 appellant have made out a case for waiver of penalty imposed under Section 78 invoking Section 80 of the Finance Act, 1994. Therefore, despite the extended period of demand is invoked, the penalty imposed under Section 78 is though sustainable otherwise, but in the facts and circumstances of the case, there is reason to invoke section 80 - penalty set aside. Scope of SCN - demand of ₹ 7,07,616/- - HELD THAT:- The demand of ₹ 7,07,616/- has been confirmed which was not even proposed in show cause notice which is not sustainable being beyond the scope of show cause notice - demand not sustainable. Appeal allowed in part.
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