TMI Blog2018 (10) TMI 29X X X X Extracts X X X X X X X X Extracts X X X X ..... terest 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ORDER Per: Dr. Devender Singh In these appeals, which pertain to the same appellant, the issue involved is same and accordingly these are taken up for disposal together. 2. The brief facts of the case are that the appellant is engaged in providing taxable service in the category of Manpower Recruitment or Supply Agency's Service and is registered under the service tax registration. On scrutiny of their records, it was found that the appellant had not discharged service tax liability for the month of May'2008, (in Appeal No. ST/465/2008), June'2008 (In Appeal No. ST/677/2008), and July'2008 (in Appeal No. ST/678/2008). The bank statements of the appellant were verified and it was found that the appellant had not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice. The delay in payment of service tax was known to the Department, as the Department has issued show cause notice on a month on month basis for such delay. Pleading against the imposition of penalty under Section 76, the Ld. Advocate argued that the appellant has discharged service tax along with interest and sought waiver of penalty under Section 80 of the Finance Act, 1994. He argued that the delay was only on account of severe cash flow problems and there was no intent to evade payment of service tax. He relied on the following case laws. CCE ST,LTU, Banglore Vs. Adecco Flexione Workforce Solutions Ltd. reported in 2012 (26) STR 3 (kar). CCE Vs. Tejas Agency reported in 2014 (34) STR 803 (Guj.) Ld. Advocate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efaulted in discharging their tax liability for the month of May' 2008, June 2008 and July 2008. Not only that the appellant also did not file the returns within the stipulated time. 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. 6. As for the penalty under Section 76 of the Finance Act, 1994, the only explanation put forth by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... circumstance can justify non-deposit of service tax collected. Obviously thus there is not a great deal of discussion required to conclude that the appellants deliberately short paid the service tax due and the impugned order does not suffer from any appealable infirmity on merit. The appellants during the hearing have pleaded that for penalty under Section 78 the benefit of payment of 25% of the mandatory equal penalty as per proviso to Section 78 of the Finance Act should be given to them as the same had not been done in the impugned order. In this regard, we find that the Gujrat High Court in the case of CCE, Ahmedabad v. Ratnamani Metals Ltd. - 2013-TIOL-1124-HC-Ahd-CX = 2013 (296) E.L.T. 327 (Guj.) has held as under : At no s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of Adecco Flexione Workforce Solutions ltd. (supra), the appellant had paid the entire tax and interest prior to the issue of the show cause notice and in the circumstances, the Hon'ble High Court held that penalty was not justified. In the present appeals, however, the appellant admittedly did not pay the service tax and interest before the issuance of show cause notice. Hence, the decision in their earlier case is not applicable to the present cases. For the same reasoning, the decision of Tejas Agency (supra), which followed the ratio of Adecco Flexione (supra), cannot be applied to the present cases. 8. In view of the foregoing, we hold that the appellants have not been able to substantiate their claim for waiver of pen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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