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2015 (11) TMI 1110 - AT - Service TaxNon payment of service tax collected - Custom House Agent service - C & F service - Penalty u/s 76 & 78 - Held that:- Appellants have claimed that they were collecting amounts for various services such as obtaining space certificate, getting Port Health Officer report, getting warehousing licence, getting extension of warehousing licence, attending warehouse clearances, miscellaneous expenses, supervision expenses, miscellaneous DEPB expense etc. To a specific query from the Bench, learned counsel fairly agreed that for these amounts, the appellant do not have bills and he also could not specifically confirm that these were in the nature of reimbursement of actual expenses incurred by the appellant as a CHA so that the same can be considered as expenses incurred by a pure agent. In the absence of any evidence to show that these were reimbursable expenses and covered by bills and evidences to show that this was actual reimbursement of expenses, it would not be appropriate to consider the claim that the same cannot be charged to service tax. Therefore we consider that service tax of ₹ 8,43,226/- with interest liable to be paid on these amounts has to be upheld as demanded. The appellants do not undertake the responsibility of clearing and forwarding but have undertaken certain activities which we cannot consider as part of C&F agency service. Therefore, we consider that demand for ₹ 16,924/- also cannot be sustained. Penalty has been imposed under Section 76 as well as Section 78 of Finance Act, 1994. It is settled law that penalties under Sections 76 and 78 both cannot be imposed. Therefore we consider that penalty under Section 78 equal to the service tax demand upheld by us would meet ends of justice and penalty under Section 76 need not be imposed
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