TMI Blog2013 (1) TMI 297X X X X Extracts X X X X X X X X Extracts X X X X ..... that:- Following the decision in case of Krishna Poduval (2005 (10) TMI 279 - KERALA HIGH COURT) that there can be a situation where even without suppressing value of taxable service, the person liable to pay service tax fails to pay. Penalty can certainly be imposed on erring persons. Therefore, for failure to pay service tax in time, the appellant is liable to penalty u/s 76. In favour of revenue - ST/471/10 - A/233/2012/SMB/C-IV - Dated:- 21-8-2012 - P.R. Chandrasekharan, J. Appellant Rep by: Shri N.R. Manikar, Adv. Respondent Rep by: Shri Navneet , Addl. Comm. (AR), Per: P.R. Chandrasekharan: 1. The appeal is directed against order-in-Original No. 17/STC/BR/10-11 dated 08/07/2010 passed by the Commissioner of Serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount. The said order has not been challenged by the appellant before this Tribunal. 2.2 In the meanwhile a show-cause notice dated 08/12/2009 was issued to the appellant by the Commissioner of Service Tax Mumbai, proposing to review the order passed by the lower adjudicating authority on the ground that the order dated 26/08/2008 passed by the lower authority did not confirm the demand for service tax along with interest thereon and also that no penalty has been imposed on the appellant under Section 76 of the Finance Act, 1994 as there was a failure to pay service tax in time on the part of the appellant. The said notice was adjudicated by the impugned order wherein the Commissioner has confirmed the service tax demand of Rs. 4,64,524 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be treated as cum tax and the amount received should be apportioned between the assessable value and the service tax liability. If this is done, then the tax liability would come down to Rs. 4,16,775/-. Therefore, the amount of service tax liability to the paid by the appellant is only Rs. 4,16,775/- and not Rs. 4,64,524/- as confirmed in the impugned order. Thus, the appellant is entitled for the consequential relief in this regard. 5.2 As regards the imposition of penalty under Section 76 of the Finance Act, this issue was not before the Commissioner (Appeals) at all, inasmuch as the original adjudicating authority had confirmed the penalties under Sections 77 78 only. Since the issue was not before the Commissioner (Appeals), ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of opinion that the incidents of imposition of penalty are distinct and separate and even if the offences are committed in the course of same transaction or arises out of the same act, the penalty is imposable for ingredients of both the offences. There can be a situation where even without suppressing value of taxable service, the person liable to pay service tax fails to pay. Therefore, penalty can certainly be imposed on erring persons under both the above Sections, especially since the ingredients of the two offences are distinct and separate." 5.4 The ratio of the above judgment, in my view, applies to the facts of the present case and for failure to pay service tax in time, the appellant is liable to penalty under Section 76 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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