TMI Blog2015 (5) TMI 566X X X X Extracts X X X X X X X X Extracts X X X X ..... 78 for invoking of the penalty, as has been held by the Tribunal. It was the categorical stand of the appellant before the First Appellate Authority that the service tax had been collected by mistake, on account of the new provision and the office of the appellant was not fully acquainted with the interpretation of the statute due to which the default had occurred and therefore, in view of the defence taken, the Tribunal was not justified, in the present facts and circumstances, to hold that there was a wilful suppression of facts, to bring it within the ambit of Section 78. - Decided in favour of assessee. - STA No. 30 of 2014 (O&M) - - - Dated:- 29-4-2015 - S. J. Vazifdar, ACJ And G. S. Sandhawalia,JJ. For the Appellant : Mr Sudhi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... posited the interest due and the amount deposited had only been done after the initiation of the enquiry of the service tax which had then been paid by the appellant. The service tax was required to be deposited by the noticee under Section 73A of the Act, as per the provisions of Rule 6 of the Service Tax Rules, 1994. Accordingly, interest was also liable to be recovered from the noticee along with invoking the penal provisions as provided under Sections 75 76 of the Act. 4. Thereafter, on 29.06.2012 (Annexure A-2), the demand of service tax of ₹ 6,52,207/- was confirmed by the adjudicating authority and appropriation was ordered from the amount already deposited and interest was also liable to be recovered from the noticee and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntravened and thus, sought the restoration of the orders of the adjudicating authority. The Tribunal allowed the appeal on the ground that since the service tax had been collected for the three invoices, it was required to be deposited in terms of Section 73A(2) but was not deposited till 15.11.2008. It was, accordingly, held that there was a wilful suppression of fact with an intention to evade the tax and the appellant's mala fides were established since the amount had been deposited only on the insistence of the Revenue. Reliance was placed upon Section 73A to contend that the service tax was to be deposited forthwith with the Government and that Section 68 was not relevant which had been relied upon by the Commissioner (Appeals). Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Admittedly, on the date the invoices were raised, the appellant was not liable to pay the service tax though he had collected the same. As per Section 73A(2), the person who has collected any amount which was not required to be collected from any other person, such person shall forthwith pay the amount so collected to the credit of the Central Government. Section 73A(2) reads as under: [73A (2) Where any person who has collected any amount, which is not required to be collected, from any other person, in any manner as representing service tax, such person shall forthwith pay the amount so collected to the credit of the Central Government. 9. The penalty provision under Section 76 refers to Section 68 and the liability to pay servi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vention of the provisions of the Chapter or of the Rules with intent to evade payment of service tax. Section 78 reads as under: [78. Penalty for suppressing, etc. of value of taxable services (1) Where any service tax has not been levied or paid or has been short-levied or short-paid or erroneously refunded, by reason of- (a) fraud; or (b) collusion; or (c) wilful mis-statement; or (d) suppression of facts; or (e) contravention of any of the provisions of this Chapter or of the rules made thereunder with the intent to evade payment of service tax, the person, liable to pay such service tax or erroneous refund, as determined under sub-section (2) of section 73, shall also be liable to pay a penalty, in addition to such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... increased, as the case may be, shall be taken into account: Provided that in case where the service tax to be payable is increased by the Commissioner (Appeals), the Appellate Tribunal or, as the case may be, the court, then, the benefit of reduced penalty under the second proviso to sub-section (1), shall be available, if the amount of service tax so increased, the interest payable thereon and twenty-five per cent of the consequential increase of penalty have also been paid within thirty days or ninety days, as the case may be, of communication of the order by which such increase in service tax takes effect: Provided further that if the penalty is payable under this section, the provisions of section 76 shall not apply. 11. Once ..... X X X X Extracts X X X X X X X X Extracts X X X X
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