TMI Blog2014 (4) TMI 1061X X X X Extracts X X X X X X X X Extracts X X X X ..... , 2008, the assessing authority and later the Tribunal were justified in placing reliance on Krishna Poduval’s case (2005 (10) TMI 279 - Kerala High Court) by the High Court of Kerala. - at the relevant point of time prior to Finance Act, 2008, penalty could be imposed under both the provisions and it is for appellant/assessee to convince authorities concerned by evidence that they are not liable to pay Service Tax and that there is justification in the defence raised by them regarding refund of the amounts - Decided against assessee. - C.E. Appeal No. 3 of 2014 - - - Dated:- 7-4-2014 - Manjula Chellur, C.J. and A.M. Shaffique, J. Shri S. Krishnamoorthy, Advocate, for the Appellant. Shri Ranjith Jacob Koshy Thomas Mathew Nell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... defence regarding refund claim, etc. Paragraph 15.1 reads as under : The allegation in the S.C.N. is that M/s. Lawson Travels Tours (I) Pvt. Ltd., Trivandrum contravened the provisions of Sections 68, 70 and 78 of the Finance Act, 1994 and Rules 6 and 7 of Service Tax Rules, 1994 by not paying the correct Service Tax for the taxable services provided by them during the period April, 2000 to March, 2004, by not filing the prescribed returns and also by wilfully suppressing the value of taxable services. In the defence the party has not disputed the fact of non-payment of correct Service Tax or the liability to tax, but has disputed the quantity. According to them at least 30-40% of the invoice amount was not collected whereas the Show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6-1997 the Air Travel Agents (ATAs) have to pay Service Tax on the commission amount received from Airlines. As per Rule 6(7) of the Service Tax Rules, 1994 ATAs have an option to pay an amount calculated at the rate as a percentage of the basic fare as mentioned in Para 5 supra and option once exercised shall apply uniformly in respect of all the booking and shall not be changed during a financial year. Since they had opted for the percentage upto March, 2002 and on the basis of commission received from April, 2002 onwards, the tax liability is worked out accordingly and they are liable to pay the Service Tax as demanded in the SCN. Whatever amount they have paid towards the above liability can be adjusted towards the demand. Interest unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Finance Act, 2008, which made a remarkable distinction between Sections 76 and 78 of Service Tax Act. As the period in question relates prior to Finance Act, 2008, the assessing authority and later the Tribunal were justified in placing reliance on Krishna Poduval s case (supra) by the High Court of Kerala. 6. We find no good reason to opine that both Sections 76 and 78 are not applicable to the case of the appellant. On the other hand, we find, at the relevant point of time prior to Finance Act, 2008, penalty could be imposed under both the provisions and it is for appellant/assessee to convince authorities concerned by evidence that they are not liable to pay Service Tax and that there is justification in the defence raised by them reg ..... X X X X Extracts X X X X X X X X Extracts X X X X
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