TMI Blog2010 (5) TMI 268X X X X Extracts X X X X X X X X Extracts X X X X ..... S/Shri M.V. Ravindran, Member (J) and P. Karthikeyan, Member (T) REPRESENTED BY: Shri B. Seetha Ramaiah, Advocate, for the Appellant. Ms. Joy Kumari Chander, Jt. CDR, for the Respondent. [Order per: P. Karthikeyan, Member (T)]. - This appeal is filed by ABC Engineering Works, Vijayawada. seeking to vacate penalty imposed on them under Section 76 of the Finance Act, 1994 (the Act). The appellants had entered into a contract with M/s. Singareni Collieries Company Ltd. (SCCL), a Central Public Sector Undertaking, and provided the services, of blast hole drilling, blasting, excavation, loading, transportation dumping, etc. of overburden in open cast coal mines, to SCCL during the period from 16-6-2005 to 31-3-2006, without followi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion cess or to suppress any facts or to make willful mis-statement, since their client was a Central Government Company. They had paid Rs. 6,85,87,026/- before issue of show cause notice and the balance tax of Rs. 64,89,403/- before adjudication. Interest liability of Rs. 13,19,582/- was paid on 7-1-2008 before adjudication. It is argued that since the total amount of service tax and education cess was paid well before the adjudication, imposition of penalty under Section 76 of the Act for delay involved in obtaining registration, payment of service tax and filing returns could not be imposed ordinarily, "unless the party obliged either acted deliberately in defiance of law or was guilty of conduct, contumacious or dishonest or acted in con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty became taxable, the appellants had failed to register itself with the department or to pay the service tax due. The appellants took registration on 3-3-2006 following a communication from the department on 25-1-2006 and paid the tax of Rs. 6,85,87,206/- before issue of show cause notice on 30-8-2006 and the balance tax of Rs. 64,89,403/- subsequently before adjudication. The appellants paid the interest due on 7-1-2008. 5. In the impugned order, the Commissioner found that the appellants had suppressed the fact of their rendering taxable service from the department with intention to evade payment of service tax. The appellants had failed to pay the interest accrued on the arrears of tax. Despite their promise at the time of personal he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issue of show cause notice. These authorities are no longer binding in view of the judgment of the Apex Court in the UIO v. Dharamendra Textile Processors [2008 (231) E.L.T. 3 (S.C.)] case, wherein it was held that penalty equal to duty is mandatory under Section 1 1AC of the Central Excise Act when duty due is evaded by reason of fraud, suppression of facts, willful misstatement, etc. and the same is confirmed against the assessee under Section 11A (2). 7. Even though the appellants herein paid most of the tax due before is sue of show cause notice and the balance dues before the adjudication the Commissioner observed as follows in the impugned order "During the written submissions made during the personal hearing, the authorized repr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... higher, starting with the first day after the due date till the date of actual payment of the outstanding amount of service tax: Provided that the total amount of the penalty payable in terms of this section shall not exceed the service tax payable." Section 80 of the Act reads as follows :- "Section 80. Penalty not to be imposed in certain cases. - Notwithstanding anything contained in the provisions of section 76, [section 77 or section 781, no penalty shall be imposable on the assessee for any failure referred to in the said provisions if the assessee proves that there was reasonable cause for the said failure." As per provisions of Section 80, no penalty shall be imposable on the assesse for any failure referred to in Section ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
