TMI Blog2009 (3) TMI 296X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant in this appeal is against the imposition of penalties under Section 76, 77 and 78 of the Finance Act, 1994. – since appellant had collected the Service Tax but not deposited the same with the Government treasury, imposition of penalty u/s 76, as it stood during the relevant period, is correct and justified - as appellant has not filed the ST-3 Returns as mandated penalty imposed under Section 77 is correct and is upheld - we find that there is no allegation in the show cause notice, regarding suppression, willful misstatement, fraud or collusion with intent to evade payment of Service Tax, no penalty can be imposed u/s 78 – demand confirmed u/s 73(1) – appeal partly allowed - ST/158/2008 - 211/2009 - Dated:- 18-3-2009 - S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owards the Service Tax liability. 2.1 Appellants were issued a show cause notice cum demand, directing them to show cause as to why. (i) A total Service Tax amounting to Rs. 1,84,133/- (including education cess) towards "Manpower Recruitment Service" provided during the period from January 2006 to April 2006 should not be demanded from them under the provisions of Section 73(1) of the Act. (ii) A total Service Tax amounting to Rs. 23,81,355/- towards "Commercial Training and Coaching Services" provided during the period from January 2006 to April 2006 should not be demanded from them under the provisions of Section 73(1) of the Act. (iii) Service Tax of Rs. 17,31,891/- (inclusive of Education Cess) recovered from them under TR6 ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ards the Service Tax payable by the assessee on account of Commercial Training and Coaching Service provided during the period from January 2006 to April 2006, under the provisions of Section 73(1) of the Act. 2. Further, I confirm an amount of Rs. 1,84,133/- (Rupees One Lakh Eighty Four Thousand One Hundred and Thirty Three Only) towards the Service Tax liability on account of Manpower Recruitment service provided during the period from January 2006 to April 2006, under the provisions of Section 73(1) of the Act. 3. Since the assessee had deposited an amount of Rs. 17,31,891/- (Rupees Seventeen Lakhs Thirty One Thousand Eight Hundred and Ninety One Only), the said amount is appropriated towards the Service Tax liability as confirmed at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e penalties imposed in the impugned order are unwarranted. It is his submission that appellants had every intention to discharge Service Tax liability and collected the same, but due to severe financial hardship could not deposit the same. It is his submission that entire Service Tax liability with interest thereof stands discharged before the issuance of impugned order. It is his submission that penalty under Section 78 of the Finance Act, 1994 is not at all imposable, as there is no allegation of suppression of facts with intent to evade payment of Service Tax. For this proposition, he relies upon the following case laws. (i) Aban Loyd Chiles Offshore Ltd. v. CC - 2006 (200) E.L.T. 370 (S.C.) (ii) Pahwa Chemicals Pvt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The challenge of the appellant in this appeal is against the imposition of penalties under Section 76, 77 and 78 of the Finance Act, 1994. 5.1 It is seen that the Adjudicating Authority has imposed penalty under Section 76 of the Finance Act, 1994, at the rate of Rs. 200/- per day for the period of default. We find that the provision of Section 76 are attracted in this case as it is undisputed that appellant had collected the Service Tax for the period January2006 to April 2006 but not deposited the same with the Government treasury. We are of the considered view that imposition of penalty as per provisions of Section 76, as it stood during the relevant period, is correct and justified and the impugned order to that extent needs to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t this Section can be pressed into service only it there are ingredients of fraud; or collusion or willful misstatement or suppression with intent to evade Service Tax. In our considered opinion in the absence of any such allegations in the show cause notice, no penalty can be imposed under this Section. Further, it is also seen that the Adjudicating Authority has confirmed the demand under Section 73(1) of the Finance Act, 1994, which in itself does not attract provisions of Section 78 of the Finance Act, 1994 for imposing penalty. Learned counsel was correct in stating that the ratio laid down by Hon'ble Supreme Court in the case of Aban Loyd Chiles Offshore Ltd. v. CC (supra); Pahwa Chemicals Pvt. Ltd. v. CCE (supra) and CCE v. HMM Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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