TMI Blog2015 (9) TMI 473X X X X Extracts X X X X X X X X Extracts X X X X ..... nt clearly falls within the mischief of willful misstatement/suppression of facts and therefore, the appellant does not deserve the benefit of Section 80 of the Act. Further, since Section 78 as its stood at the relevant time did not provide for any reduction in the mandatory penalty equal to the amount of service tax not paid/short paid, the benefit of amended provision which came into force with effect from 08/04/2011 could not have been extended to the appellant. Penal provisions are substantive in character and therefore, the provisions that shall apply are those existing at the time of commission of the offence. Therefore, there was no scope for the lower appellate authorities to reduce the penalty from the statutory stipulated penalty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed on the appellant under Sections 77 78 of the Finance Act, 1994. The amounts paid by the appellant towards service tax and interest were appropriated in the order-in-original. The penalty confirmed on the appellant was ₹ 5,000/- under Section 77 of the Act and ₹ 23,31,524/- under Section 78 of the Act. 3. The said order was challenged by the Revenue before the lower appellate authority on the ground that this reduced the penalty under Section 78 would be effective only from 08/04/2011 and not prior to that date and therefore, the appellant was liable to penalty equal to the service tax short paid/not paid. The Commissioner (Appeals) however, did not accept the Revenue's contention and confirmed the order of the adjud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e submissions made by both the sides. 6.1 Prior to 08/04/2011, Section 78 envisaged imposition of penalty equal to service tax short paid or not paid if such short/non-payment was on account of willful mis-statement, suppression of facts or contravention of any other provisions of the Act with an intent to evade service tax. In the present case, the appellant had collected the service tax amount from his customers but failed to remit the same to the exchequer. It is also on record that the appellant failed to file statutory returns required to be filed by him. This conduct of the appellant clearly falls within the mischief of willful misstatement/suppression of facts and therefore, the appellant does not deserve the benefit of Section 80 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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