TMI Blog2013 (8) TMI 374X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal decided against assessee. - ST/320/2011 - A/1656/2012-WZB/AHD - Dated:- 23-11-2012 - Shri B.S.V. Murthy, J. Shri N.K. Ojha, for the Appellant. Shri K.N. Joshi, AR, for the Respondent. ORDER The brief facts of the case are that the appellant is engaged in the business of providing service of Pandal and Shamiyana to various customers which is taxable under the service tax provisions and having Service Tax registration No. AAGFA5716KST001. Intelligence gathered revealed that the appellant was not paying service tax properly on the taxable services charged and collected by them and evading service tax considerably by not showing the actual amount of service provided. Hence, search proceedings were initiated against t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interest thereon and also proposed penalties under Sections 76, 77 and 78 of the Finance Act, 1994. The said SCN was adjudicated by the Assistant Commissioner and the adjudicating authority confirmed the amount of Service Tax of Rs. 2,06,094/- short paid by them by considering the value declared in the invoices as cum duty price, as the appellant has not collected separate service tax from their customers under Section 73(1) of the Finance Act, 1994. The Adjudicating Authority also ordered to recover the interest under Section 75 of the Act and imposed penalties under Sections 76, 77 and 78 of the Finance Act. 2. Appeal filed against this order has been rejected and the issue is before me. The ld. Counsel on behalf of the appellant fairl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case of Krishna Poduval [2006 (1) S.T.R. 185 (Ker.) and 2012 (25) S.T.R. 417 (Del.) the case of Bajaj Travels Ltd., to submit that prior to amendment of Section 78, penalty under Sections 76 78 of the Finance Act, 1994 could be imposed and amendment to Section 78 carried out in the year 2008 does not have retrospective effect. Further he relies upon the decision of the Hon ble High Court of Gujarat in the case of Neminath Fabrics Pvt. Ltd. [2010 (256) E.L.T. 369 (Guj.)] to submit that the fact whether the department has knowledge or not is not relevant. What is relevant is whether there was suppression of facts/misdeclaration with an intention to evade duty on the part of the appellant. Once suppression or misdeclaration has proved, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rest as held by the lower authority and penalty under Section 77 have to be sustained and upheld. 5. The learned Counsel at this juncture made a request to pay balance amount of service tax, interest and penalty to the extent of 25% of the service tax may be extended as he relied upon the decision of the Tribunal in the case of Ratnamani Metals Tubes Ltd. [2012 (285) E.L.T. 274 (Tri.-Ahmd.)] to support his submission. 6. I have considered the decision of the Tribunal in the case of Ratnamani Metals Tubes Ltd. reported in 2012 (285) E.L.T. 274. The Tribunal has followed the decision of the Hon ble Gujarat High Court in the case of Akash Fashion Prints Pvt. Ltd. reported in 2009 (239) E.L.T. 439 (Guj.) and in the case of Akash Fashion ..... X X X X Extracts X X X X X X X X Extracts X X X X
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