TMI Blog2015 (1) TMI 1097X X X X Extracts X X X X X X X X Extracts X X X X ..... 40062-40063/2015 - Dated:- 22-1-2015 - Honble Shri R. Periasami,JJ. For the Petitioner : Shri K.P.Muralidharan, AC (AR) For the Respondent : Shri S. Venkatachalam, Advocate ORDER Both the assessee and Revenue have filed appeals against the Order-in-Appeal No. 74/2005-ST dt.19.9.2005. Therefore, both are taken up together for disposal. 2. The brief facts of the case are that the appellants were rendering clearing and forwarding service as consignment agent to M/s.Steel Authority of India Ltd. (SAIL). They have not discharged service tax for the period April'99 to March'04 and there was a delay in payment of service tax of ₹ 44,31,640/- which was subsequently paid by the appellant. The adjudicating autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irami Associates Vs CCE Pondicherry 2009 (14) STR 801 (Tri.-Chennai) 5. The Ld. AR reiterated the grounds of appeal as the assessees have not made out any valid ground for reduction in the penalty and they were not regularly paying service tax. He submits that Commissioner (Appeals) has no discretionary power for reducing the penalty under Section 76 as Section 76 restricts penalty payment for default payment of service tax to ₹ 100/- per day. 6. Regarding assessee's appeal, he submits that they have not claimed the cum tax benefit before the adjudicating authority. Therefore, they cannot raise the issue of cum tax benefit. Commissioner (Appeals) has rightly disallowed the benefit of cum tax benefit. He submits that they hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthority. The Tribunal's in the case of Commissioner Vs Advantage Media Consultant (supra) has allowed the cum tax benefit during the period when there was no Explanation in the Section for extending the cum tax benefit. The above Tribunal's order was upheld by the Hon'ble Apex Court in the case of Commissioner Vs Advantage Media Consultant (supra). The relevant portion of the order is reproduced as under :- The Supreme Court Bench comprising Honble Mr. Justice S.H. Kapadia and Honble Mr. Justice B. Sudershan Reddy on 13-10-2008, after condoning the delay dismissed the Civil Appeal No. D 23523 of 2008 filed by Commissioner of Central Excise Customs, Patna against the CESTAT Final Order Nos. A/355-356/KOL/2008, dated 19-3-2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he service tax on the consignment agent came into effect from 16.7.97 and subsequently payment of service tax was shifted to service provider (appellant) from 1.9.99. There is no justification for delayed payment of tax for a period of 5 years and not filed any return. Only after being pointed out by department, appellants paid ₹ 39,33,638/- partially before issuance of SCN and the remaining amount after issuance of SCN. Payment of service tax by service provider came into from 1.9.99 and appellants were fully aware that they cannot take shelter on the count that there was dispute between service providers and service recipients for the earlier period. Therefore, I do not find any justifiable ground for assessee's plea for total w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s been held by the Honble Apex Court in the case of Nizam Sugar Factory Ltd. [2008 (9) S.T.R. 314 (S.C.) - 2006 (197) E.L.T. 465 (S.C.)] It is the date of knowledge of the activity by the department which is relevant for computing the time-limit and accordingly, we hold that the show cause notice has been issued within the time-limit specified and the demand is not time-barred. Since the appellant did not file any returns they are rightly liable to penalty under Section 77 and we uphold the same. As regards the [penalty] imposed under Section 76 the said penalty is attracted for failure to pay service tax by the due dates and there is no mens rea required to impose penalty under the said Section. Therefore, imposition of penalty under Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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