TMI Blog2011 (9) TMI 808X X X X Extracts X X X X X X X X Extracts X X X X ..... Tax from 27-9-2004 to 8-3-2004 is an admitted fact. The Service Tax for that period was paid only in August 2005. Such default in payment of Service Tax would per se invite Section 76 as rightly found by the original authority. Indeed, nobody has argued before me that Section 76 is not applicable to cases involving default of payment of Service Tax. Therefore the decision of the lower appellate authority in relation to Section 76 of the Finance Act, 1994 cannot be accepted. - Penalty u/s 76 restored. - ST/721/2010 - 649/2011 - Dated:- 28-9-2011 - Shri P.G. Chacko, J. REPRESENTED BY : Ms. Sabrina Cano, DR, for the Appellant. Shri Pradyumna G.H., Advocate, for the Respondent. [Order]. In the appeal filed by the departmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Sections 73 and 75 respectively and appropriated the payment towards the demand. He imposed a penalty of Rs. 100 per day on them under Section 76 and a penalty equal to Service Tax under Section 78 of the Act. In an appeal filed by the assessee, learned Commissioner (Appeals) set aside both the penalties by relying on the Board s Circular No. 137/167/2006-CX-4, dated 3-10-2007. The decision of the Commissioner (Appeals) was reviewed in the department. Hence the present appeal. 3. Learned DR submits that the Board s circular is not applicable to this case as this case involves suppression of facts and contravention of Rules by the assessee with intent to evade payment of Service Tax. It is submitted that this case is governed by Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) was within the normal period of limitation as reckoned from the due date of filing Service Tax returns. This fact is not in dispute. Though, in the show-cause notice, there was a proposal to impose penalty under Section 78 of the Act for willful suppression of the value of taxable services rendered by them , there was no allegation of any such suppression elsewhere in the notice in the context of demanding/appropriating Service Tax. Nowhere in the show-cause notice was there any specific allegation of suppression of taxable value, nor was it stated as to how much of the taxable value was suppressed. The show-cause notice also did not allege any of the other ingredients of the proviso to Section 73(1) of the Act for invoking the extended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents made by the party should conclude all proceedings against them. 7. Neither sub-section (1A) nor sub-section (3) of Section 73 is applicable to the facts of this case and, therefore, the Board s clarification is irrelevant. This apart, the Board s clarification under Section 73(3) of the Act seems to be incorrect inasmuch as this provision only prohibits issue/service of show-cause notice under sub-section (1) in respect of the amount paid by the party. The amount paid by the party is an amount of Service Tax. As per Section 73(3), there shall be no show-cause notice under sub-section (1) of Section 73 in respect of the Service Tax already paid by the party. There is no bar to issuance of a show-cause notice for imposing a penalty. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
