TMI Blog2014 (12) TMI 1164X X X X Extracts X X X X X X X X Extracts X X X X ..... mendment only, tax was made applicable - appellants has made case for waiver of penalty in respect of service of renting of immovable property. However relating to failure to deposit of Service Tax in respect of Management, maintenance or repair services, no justification has come forward as it came out that levy of Service Tax was there w.e.f. 2001. However neither tax was paid nor information relating to disclosure of the availment of the credit in excess was mentioned in returns. Hon’ble High Court of Rajasthan’s judgment [2012 (11) TMI 955 - RAJASTHAN HIGH COURT] squarely fits into the facts of present case of suppression which is willful. - Decided partly in favour of assessee. - ST/58839/2013-ST(SM) - Final Order No. ST/A/54821/2014- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bona fide belief that no duty was leviable as per Hon ble Delhi High Court s Judgment in case of Home Solution Retail India Ltd. v. Union of India, reported in 2009 (14) S.T.R. 433 (Del.) = 2009 (237) E.L.T. 209 (Del.). 3. As regards to other service of repair and maintenance service, it was submitted that they were under bona fide belief that they were not chargeable the Service Tax under these services viz; repair and maintenance service. However, she intimated that they have already deposited the Service Tax amounting to ₹ 11,34,998/- and interest leviable to both the services. Accordingly no penalty should be imposed on them under section 76 and 78. She invited attention to case of First Flight Courier reported in 2011 (TIOL) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 006-07 2076000 12.24% 254102 2007-08 2076000 12.36% 256594 2008-09 2076000 12.36% 256594 2009-10 2076000 10.30% 213828 10316281 1186375 5. He also invited attention to the fact that appellants have not discharged the leviable Service Tax for the services rendered during the period from 2005-2007. He referred to para 5 6 where they have deposited the duty on repair and maintenance for the period from 10- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k Ltd. [2013 (29) S.T.R. 229 (Raj)] wherein it was held that the non-disclosure by a professionally managed corporate such as the present one, attracted application of the extended period of time. It was apparent that Cenvat credit of higher amount was unduly claimed, it was nowhere disclosed in the return. There was failure to make disclosure of the availment of the credit in excess and entire facts were not mentioned in various returns. It was a case of willful suppression. The Hon ble Tribunal s Order para 7 was referred. 9. Heard both sides and perused records. 10. Issue involved for consideration is whether penal action is invited under Section 76 and Section 78 of the Finance Act, 1994 in view of facts stated above. Appellants h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge of time to issue of show cause notice and contravention of law gets no immunity from penal consequences. Suppression corroborated by an untrue declaration in the return filed calls for levy of penalty. When the return contains a declaration as to the self-assessment particulars stating that the assessee had paid Service Tax correctly in terms of provisions of the Act and Rules made thereunder such declaration becomes faulty in absence of bona fide statement either on the return or made through a letter accompanying the return. Once the appellant has claimed that Service Tax has been paid in accordance with the law and this is not paid, that imputes the appellant to the charge. Show view brings harmony in construction of law ad for effect ..... X X X X Extracts X X X X X X X X Extracts X X X X
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