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2014 (3) TMI 606 - AT - Service TaxDemand of service tax - Tour operator service - Liability on seat reservation charges - Penalty u/s 76 & 78 - Held that:- The Bus reservation agreement is for booking of the buses for the tours undertaken to Nasik, Ellora, Ghrisneshwar, Siddharth Garden, etc. and the tour starts at 5.00 a.m. on 22/11/2007 and concludes at 7.00 p.m. on 23/22/2007. Thus, the bus reservation is for conduct of the tours and therefore, it forms rightly part of the tour operator services as defined in law. Two penalties have been imposed, one under Section 76 and another under Section 78. Section 76 penalty is imposable if there is a delay or default in payment of service tax and no mens rea is required to be proved. However, imposition of penalty under Section 78 is for suppression of facts, collusion, fraud etc. In this particular case, since the activity has been in dispute since 2004, the department cannot allege suppression or willful mis-statement of facts. Therefore, the penalty under Section 78 is neither justified nor warranted in the circumstances of the case - Following decision of CHOUDHARY YATRA CO PVT LTD Versus COMMISSIONER OF CENTRAL EXCISE. NASHIK [2012 (11) TMI 251 - CESTAT, MUMBAI] - Decided partly against assessee.
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