TMI Blog2011 (7) TMI 995X X X X Extracts X X X X X X X X Extracts X X X X ..... that non-payment of service tax was wilful or with intention to evade service tax. In view of this, merely on account of not obtaining service tax registration or non-payment of tax, it cannot be concluded that the same was with intention to evade the tax. - penalty set aside. - St/564 of 2010-sm (br) - 77 OF 2012-SM (BR) - Dated:- 20-7-2011 - RAKESH KUMAR, J. R. Krishnan for the Appellant. R.K. Jagdev for the Respondent. ORDER 1. The appellants are manufacturers of cotton yarn for export of the same. They had appointed commission agents in various countries, who were procuring the export orders for them. The services of procuring orders provided by the commission agents was taxable as Business Auxiliary Services w.e.f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, the appellants prior to adjudication of the matter had paid service tax amount of Rs.7,62,349/- along with interest in respect of the service tax liability up to 31.10.2006. On appeal to the Commissioner (Appeals), the Commissioner (Appeals) held that service tax is chargeable only for the period w.e.f 18.4.2006 and penalty would be imposable only under Section 78 equal to the service tax liability for the period 18.4.2006 to 31.10.2006. He set aside the penalty under Sections 76 and 77 of the Act. Against this order of the Commissioner (Appeals), the present appeal has been filed challenging the Commissioner (Appeals)'s order upholding the penalty under Section 78 of the Act.. 2. Heard both the sides. 3. Shri R. Krishnan, Advoc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat in view of this, the impugned order upholding the penalty on the appellant under Section 78 is not correct. 4. Shri R.K. Jagdev, ld. Departmental Representative, defended the impugned order by reiterating the findings of the Commissioner (Appeals) and pleaded that though the appellants were receiving the taxable services from the commission agents abroad since 2005 and though this service was no longer exempt from tax w.e.f. 9.7.2004, they neither obtained registration nor paid the service tax, that there is absolutely no justification for not obtaining service tax registration or non-payment of tax w.e.f. 18.04.2006 when there was no doubt about their liability to pay the tax as service recipient, that not-obtaining of service tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing which the person is required to do would not be sufficient to invoke the provisions to Section 11 A(l). Since the wordings of Section 78 of the Finance Act, 1994 are identical to the wordings of the proviso to Section 11 A(l) of the Central Excise Act, 1944, the ratio of the judgment of the Hon'ble Supreme Court in the case of Cosmic Dye Chemical ( supra ) would be applicable to the question of imposition of penalty under Section 78 of the Finance Act, 1994. In this case, there is no dispute about the fact that the appellant were disclosing the information about the receipt of taxable service of procuring export orders on commission basis from commission agents abroad, in their balance sheets and as soon as the information in this reg ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
