TMI Blog2014 (9) TMI 484X X X X Extracts X X X X X X X X Extracts X X X X ..... eir own and non-payment of service tax continued for years. Further no bonafide could be proved as no reasonable ground could be shown by the respondent. Bombay High Court judgement in the case of Riya Travels and Tours Vs. Union of India [2010 (7) TMI 774 - BOMBAY HIGH COURT] is in the favour of revenue as omission was not bonafide as it was detected by visiting officers of DGCEI. - invoking section 80 and waiving penalty is not proper - Decided against the assessee. - Appeal No. E/52549/2014 - FINAL ORDER No.53219/2014 - Dated:- 20-8-2014 - Mr. Manmohan Singh, J For the Appellant : Shri R.K. Mishra, DR For the Respondent : Shri M.B. Maheshwair, CA JUDGEMENT Per MANMOHAN SINGH: The Revenue has come up in appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... On scrutiny of Service Tax returns, it was observed that the Service Tax was paid on much lesser amount as compared to the amount shown in the head of freight cartage resulting in short payment of service tax amounting to ₹ 7,83,266/-. As such, a show cause notice dated 18.10.2010 was issued and adjudicated and demand of ₹ 7,83,266/- was confirmed alongwith interest under Section 73 (i) 75 respectively of the Finance Act, 1994. Since entire Service Tax was deposited ₹ 7,86,079/- (Rs.5,23,279/- + ₹ 2,62,800/-) alongwith interest amounting to ₹ 3,16,516/- before and after issuance of show cause notice, the same was ordered to be appropriated in the government account. Penalties of ₹ 200/- per day or @ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Registration enjoined a greater liability on them to discharge their tax liability timely as required by statutory laws. (c) The assessee had a chance to show their bonafides. The moment, evasion was detected by the Anti-Evasion Wing, the assessee could have deposited entire amount of Service Tax with interest and 25% of Service Tax as penalty as mandated under section 73 of Finance Act, 1904. But, they chose the other way i.e. to contest their tax liability and imposition of penalty under sections 76, 77 and 78 of Finance Act, 1994. When they approached High Court against Stay Order of the Commissioner (Appeals), Jaipur-II, hon ble High Court directing their to deposit 59% of the amount of penalties imposed under sections ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see. 6. On the other hand, respondent have filed following cross objection contesting the grounds of appeal filed by the department which were based on Order-in-Original No.129/ST/JP-II/2011-JC dated 17.10.2011 passed by the Joint Commissioner of Central Excise, Jaipur-II: (i) That no penalty was leviable if service tax and interest was paid before SCN. Explanation 2 to section 73 (3) of Finance Act, 1994 provided that once service tax and interest was paid under section 73 (3) of Finance Act, 1994, then no penalty should be imposed under provisions of Service Tax. (ii) Respondents also referred to the following judicial pronouncements: (a) In Lalit Ashok vs.CST, Bangalore-2014 (33) STR 513 (Tri., Bang.), (b) In Sen Brothers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inly be imposed on erring persons under both the above Sections, especially since the ingredients of the two offences are distinct and separate. Accordingly, request to uphold the Commissioner (Appeals) s order was made. 9. Heard both sides and also gone through grounds of appeal taken up by the revenue and cross objections filed by the respondents. 10. Commissioner (Appeals) has granted the benefit of section 80 of Finance Act, 1994 and consequently penalties have been quashed. This was done based on respondent s claim that service tax was deposited before issue of SCN showing bonafide. On the other hand, it is revenue s contention that Commissioner (A) has not appreciated findings recorded by adjudication authority wherein it has cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s it was detected by visiting officers of DGCEI. Further their plea of deposit of short levy before the issue of show cause notice has not been found true as they reversed only 80% of the wrongly taken credit. They have deposited service tax amounting to ₹ 5,23,279/- before issue of show cause notice and service tax amounting to ₹ 2,62,800/- was deposited after issue of show cause notice. 14. In view of above, I find that revenue has clearly brought out deficiencies and irregularities in the order of Commissioner (Appeals) and I fully agree. Commissioner (Appeal) s order invoking section 80 and waiving penalty is not found proper. Accordingly departmental appeal is accepted and Commissioner (Appeals) order is set aside as it ..... X X X X Extracts X X X X X X X X Extracts X X X X
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