TMI Blog2015 (8) TMI 796X X X X Extracts X X X X X X X X Extracts X X X X ..... inly from 26.03.2009, the appellant must be presumed to have knowledge of being the provider of taxable services liable to remit service tax on the consideration received therefor. The failure of the assessee to remit service tax even immediately after obtaining service tax registration for CICS on 26.03.2009 therefore leads to the clear presumption of conscious knowledge of the liability to tax and of the failure to remit the tax with an intent to evade the same, in violation of the provisions of the Act. Even prior to 26.03.2009, on a plain reading of the provisions of Section 65(25b) of the Act the assessee cannot claim to have been under any doubt as to having provided the specified taxable service. The unambiguous provisions of Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial or industrial construction service and works contract service to several entities for commercial purposes. The assessee neither obtained registration for providing taxable services during the initial period nor remitted the service tax on commercial or industrial construction service; and w.e.f. 01.06.2007 on works contract service. The assessee obtained registration for providing commercial or industrial construction service only on 26.06.2009 and for works contract service on 30.03.2010. 3. The Anti Evasion Branch of the Central Excise Commissionerate, Allahabad, on the basis of an enquiry pursuant to intelligence received learnt about rendition of the taxable services, non-registration and non-remittance of service tax by the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted prior to issuance of show cause notice, no proceedings should be initiated nor penalty imposed. 5. By the primary adjudication order dated 04.02.2013, the Joint Commissioner confirmed the demand of service tax and appropriated the amounts already remitted towards the demand; imposed a penalty of ₹ 10,000/- under Section 77 of the Act, for violation of Section 70 read with Rule 7; imposed late fee of ₹ 2,000/- under Section 70 of the Act and a further penalty of ₹ 10,96,375/- under Section 78 of the Act; and ordered for appropriation of ₹ 10,96,375/- from out of the deposit already made by the appellant. 6. Aggrieved, the assessee preferred an appeal which was partly allowed by the impugned order of the lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on and the conditions set out in sub-section (4) of Section 73 of the Act, which excludes of the applicability of the provisions of sub-section (3) of Section 73 of the Act. According to Revenue the learned appellate Commissioner erred in allowing the assessee's appeal and dropping penalties imposed under Sections 77 and 78 of the Act. 8. Section 73(3) of the Act enjoins that where any service tax has not been paid or short paid but has been paid subsequently on the basis of the assessee's own ascertainment of the liability or on the basis of the tax ascertained by the competent officer, before service of notice on him under sub-section (1) in respect of service tax and informs the competent officer of such payment in writing, no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 26.03.2009 therefore leads to the clear presumption of conscious knowledge of the liability to tax and of the failure to remit the tax with an intent to evade the same, in violation of the provisions of the Act. Even prior to 26.03.2009, on a plain reading of the provisions of Section 65(25b) of the Act the assessee cannot claim to have been under any doubt as to having provided the specified taxable service. The appellant cannot be to heard to plead that it was ignorant of the law and that such ignorance is predicated on the fact that it did not go through the provisions of the Act Ignorancia juris non excusat. Learned Counsel for the assessee would place reliance on the judgments in CCE vs. Chemphar Drugs Liniments - 1989 (40) ELT 276 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the liability, the amount of penalty liable to be paid by such person under the first proviso to Section 78 shall be 25% of such service tax. The Gujarat High Court in CCE C, Surat-I vs. Harish Silk Mills - 2010 (255) ELT 393 (Guj.), the Madras High Court in CCE, Chennai-lll vs. Motherson Sumi Systems Ltd. - 2014 (301) ELT 225 (Mad.) and another decision of the Gujarat High Court in CCE, Ahmedabad-lll vs. Ratnamani Metals and Tubes Ltd. - 2013 (296) ELT 327 (Guj.) have ruled that when no such option is given earlier to the assessee, the same benefit could be provided either by the Tribunal or by the High Court. In the light of the law declared in these decisions, while upholding the order of the Commissioner (Appeals) it is clarified th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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