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2015 (8) TMI 955 - CESTAT MUMBAI

2015 (8) TMI 955 - CESTAT MUMBAI - TMI - Penalty u/s 78 - assess had collected the service tax but failed to deposit the same with the Government account due to financial crisis - Held that:- Assessee has discharged the entire service tax liability with interest. On a specific query from the Bench it was informed by the department that the entire amount of service tax has been discharged before issue of show-cause notice - invoking of Section 80 of Finance Act, was discretionary power used by ad .....

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the Respondent : None ORDER Per: M.V. Ravindran This appeal is filed by Revenue against Order-in-Original No. PI/Commr/ST/11/2010 dated 30.11.2010. 2. Respondent is not represented. Since the issue involved in this case is in a narrow compass, we take up the appeal even in the absence of any representation from the respondent. 3. Revenue is aggrieved by the impugned order only on the ground that the adjudicating authority has dropped the proposition for imposing penalty under Section 78 of the .....

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than Spinning & Weaving Mills 2009 (238) ELT 3 (S.C.) wherein the Hon ble Supreme Court has laid a law whenever the provisions of sub-section are invoked penalty under Section 11AC with the ingredients are present is attracted. 5. On perusal of the records and on consideration of the detailed submission by learned D.R., we find that the Revenues appeal is devoid of merits. 5.1 Firstly we find that adjudicating authority in his order-in-original specifically in para 9 recorded as under, for s .....

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non-payment to the Govt. exchequer. But in the instant case non-payment was due to the reason that (i) the assessee has adopted wrong method for computing assessable value and (ii) full tax was not deposited due to the reason that some of his clients failed to make payments within the due dates. The contention of the assessee that some of his clients did not make payments immediately was not verified by the department. Further the assessee also has submitted that whenever there was a late payme .....

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hown in the returns. The SCN also admits that the assessee has adopted his own method in calculating the tax. But there is no allegation of any deceit method in adopting his own method. Therefore, the assessee due to ignorance did not take the correct assessable value. The assessee also submits that he did not have any person knowledgeable who can comply the provisions of the Finance Act, 1994. In view of the above facts on record the assessee can be given protection under Section 80 and accordi .....

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tion of taxable value was also paid already. The intention of the government is to collect the due from the assessee within the due date and in case of any lathe payment, the payment has to be collected along with interest. Only in the case of suppression, fraud etc, the provision contained in Section 73 read with Section 78 would come into play. In the instant case, as discussed above, there is no fraud or suppression on part of the assessee. The moment, the short payment was quantified; the as .....

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