TMI Blog2014 (4) TMI 362X X X X Extracts X X X X X X X X Extracts X X X X ..... TMI 14 - SUPREME COURT OF INDIA] in the context of Central Excise duty has held that unless it is shown by the manufacturer that he price of goods included excise duty payable, no question of exclusion of duty element will rise for determination of value under Section 4(4)(d)(ii) of the Central Excise Act, 1944 and one cannot go by general implication that wholesale price would always mean the cum-duty price. The same ratio would apply to the facts before us. The appellant has not led any evidence before us to show that price charged by them was cum-Service Tax - Rectification denied. - Appeal No.ST/37/2007 - Misc. Order No. M/411/2014-WZB/C-I(CSTB) - Dated:- 20-1-2014 - Mr. P R Chandrasekharan and Mr. Anil Choudhary, JJ. For the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1994 was not tenable. While upholding the demand of Service Tax on values of SIM cards and the interest thereon, we hold that no penalty could be levied on the respondent under Section 73 of the Act. Therefore, in the present case also, the penalty should not have been imposed. 2.1 The second mistake pointed by the appellant is that while computing the Service Tax demand, the benefit of cum-tax has not been given. In their appeal memorandum, the appellant had specifically urged that in view of the decision of the Larger Bench of Supreme Court in the case of Shree Chakra Tyres and Maruti Udyog Ltd. - 2002 RLT 41 (SC), the appellant was eligible for benefit of cum-tax and or purpose of Service Tax calculation, the amount paid by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lusion, suppression or willful mis-statement of facts etc. In our view, the Hon'ble High Court of Kerala did not refer to any particular provisions under which the penalty is leviable. However, from the tenor of the language used, it refers to bona fide belief on the part of the appellant. Penalty for acting based on a mala fide belief (non-bona fide belief) is provided for under Section 78 of the Finance Act, 1994. Therefore, what has been set aside by the Hon'ble High Court of Kerala in the aforesaid decision is the penalty under Section 78. Penalty under Section 76 is on account of default or delay in payment of Service tax and no mens rea is required to be proved. The Hon'ble High Court of Kerala in the case of Krishna Poduv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s intentional or not. 4.3 From the above decisions and a reading the language of Section 76, it is obvious that for imposition of penalty under Section 76, no mens rea is required. Penalty is imposable if there is default or delay in payment of tax. Therefore, we do not accept the argument that we have committed the error in upholding the imposition of penalty under Section 76 of the Finance Act, 1994. 4.4 As regards the second mistake that the appellant should be given cum-tax treatment in respect of consideration received, this argument is also misplaced. The Hon'ble Apex Court in the case of Amrit Agro Industries - 2007 (210) ELT 183 (SC) in the context of Central Excise duty has held that unless it is shown by the manufacture ..... X X X X Extracts X X X X X X X X Extracts X X X X
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