TMI Blog2012 (7) TMI 410X X X X Extracts X X X X X X X X Extracts X X X X ..... levy of service tax on account of any fraud, willful mis-statement or suppression of fact by the respondent as the assessee have been filing ST-3 returns correctly indicating the quantum of service tax required to be paid by them - appellant has discharged service tax liability along with interest - delay in filing in the absence of malafide intention on the part of the assessee, imposition of penalty may not be warranted - against revenue - ST Appeal No. 424 of 2008 - ST/A/245/12-Cus - Dated:- 16-3-2012 - Archana Wadhwa, Shri Rakesh Kumar, JJ. For Appellant: Shri R K Gupta, SDR For Respondent: B L Narasimhan, Adv. Per: Rakesh Kumar: The facts leading to this appeal by the Revenue are, in brief, as under. 1.1 The resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case also held that for the services rendered prior to 14/5/03 and in respect of which the payment was received during period w.e.f. 14/5/03, the service tax would be payable @ 5% adv. and not 8% adv., which was in force w.e.f. 14/5/03. On the question of dropping the penal proceedings, the Commissioner observed that the respondent had correctly declared the value of taxable services in the ST-3 returns and had also correctly declared the service tax payable, though the tax actually paid was less than the tax payable and subsequently for certain periods, they paid the short paid tax amount alongwith interest on their own. The Commissioner, therefore, relying upon the Board's Circular No. 137/176/2006-CX-4 dated 3/10/2007 held that the provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e provided the short payment is not due to wilful misdeclaration, fraud, collusion, suppression of fact etc. and while in this case, there is no allegation of wilful misdeclaration, fraud, collusion, suppression of fact, the condition prescribed for invoking this sub-Section has not been fulfilled as the short paid amount of tax and interest was paid after the issue of show cause notice not before the issue of show cause notice. He, therefore, pleaded that in view of this, the appellant have no immunity from the penal provisions of Section 76 as the service tax was not paid by the due date. He also pleaded that the rate of service tax payable in respect of services rendered is the rate in force on the date on which the payment was received ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndering of services and not the rate in force on the date of billing or on the date of receipt of payment. We find that same view has been taken by the Tribunal in the cases of Lumax Samlip Industries vs. CST, Chennai reported in 2007 (6) S.T.R. 417 (Tri - Chennai), CCE, Noida vs. Matsushita TV Audio India Ltd. reported in 2006 (1) S.T.R. 162 (Tri. - Del.) and Art Leasing Ltd. vs. CCE, Cochin reported in 2007 (8) S.T.R. 162 (Tri. - Bang.) . In view of this, we uphold the Commissioner's order holding that in respect of the services provided by the respondent during the period prior to 14/5/06, the payment which was received on or after 14/5/06, the rate of service tax applicable would be the rate in force during period prior to 14/5/03, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t also was paying the service tax alongwith interest regularly. Thus, it is apparent that there is no intention on the part of the assessee in order to not to pay service tax at all, but undoubtedly delayed the payment of service tax as observed above." 10. As is seen from above, it is not a case of non-levy or short-levy of service tax on account of any fraud, wilful mis-statement or suppression of fact by the respondent. Admittedly they have been filing ST-3 returns, correctly indicating the quantum of service tax required to be paid by them. As such, it is a case where the service tax liability was duly reflected and stand accepted by the respondent and only the payment of service tax was being delayed by them. The imposition of penal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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