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2015 (9) TMI 473 - AT - Service TaxPenalty u/s 78 - manpower recruitment and supply agency service - Held that:- Prior to 08/04/2011, Section 78 envisaged imposition of penalty equal to service tax short paid or not paid if such short/non-payment was on account of willful mis-statement, suppression of facts or contravention of any other provisions of the Act with an intent to evade service tax. In the present case, the appellant had collected the service tax amount from his customers but failed to remit the same to the exchequer. It is also on record that the appellant failed to file statutory returns required to be filed by him. This conduct of the appellant clearly falls within the mischief of willful misstatement/suppression of facts and therefore, the appellant does not deserve the benefit of Section 80 of the Act. Further, since Section 78 as its stood at the relevant time did not provide for any reduction in the mandatory penalty equal to the amount of service tax not paid/short paid, the benefit of amended provision which came into force with effect from 08/04/2011 could not have been extended to the appellant. Penal provisions are substantive in character and therefore, the provisions that shall apply are those existing at the time of commission of the offence. Therefore, there was no scope for the lower appellate authorities to reduce the penalty from the statutory stipulated penalty equal to amount of service tax short paid. - Decided against assessee.
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