TMI Blog2015 (10) TMI 2292X X X X Extracts X X X X X X X X Extracts X X X X ..... on the appellant when SCN was issued after 16/05/2008 when amended provisions of Sec 78 were existing – Decision made in case of CST Bangalore Vs The Peoples Choice [2014 (4) TMI 291 - KARNATAKA HIGH COURT] followed – Decided in favour of appellant. No intimation was filed by appellant to make clear his intentions and have no reasonable cause to waive penalty under Section 78 – There was suppression of material facts with intention to evade payment of service tax as it was already collected from service recipients but was not paid to department - Extending 25% reduced penalty option on reworked out amount under Sec-78 is required to be decided by original authority – Matter remanded back. - Appeal No. ST/161/11 &ST/ 166/11 - ORDER NO.FO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... argued by the Learned Consultant that entire amount of Service Tax payable in relevant period was truly reflected in the periodical returns filed with the department. He made the bench go through the relevant ST-3 returns filed by the appellant to argue that in the light of true disclosures made in these returns there can not be any intention to evade payment of Service Tax. That even when extended period was not invokable still appellant made payment of the entire Service Tax alongwith interest much before adjudication. That penalties as per the provisions contained in Sec 80 should be waived as appellant has financial hard ships. It was also the alternative argument of the Learned consultant that benefit of cum duty value was not conside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (ii)whether penalty under Sec 78 of the finance Act 1994 is attracted against the appellant in the present proceedings. 5. So for as point mentioned at Para- 4 (i) is concerned it is not disputed that show cause notice is issued after the amendment dt 16/05/2008 carried out in Sec 78 of the Finance Act 1994. It is observed from Para-3 of the case law Bajaj Travels Ltd Vs CST (Supra) , relied upon by Learned AR, that the SCN in the case before CESTAT Mumbai was issue on 17/10/2005 ie. before the amendment carried out in Sec 78 of the Finance Act 1994. The facts of the case laws relied upon by the AR are thus different then the facts of the present appeals. Secondly, the case law of Karnataka High court in CST Bangalore Vs The Peop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act were substituted vide Finance Act, 2004 with effect from 10/9/2004. The provision prevailing prior to 10/9/2004 was providing for value of taxable services escaping assessment, while after its substitution vide finance Act, 2004 it provided for recovery of service tax not levied or paid or short-levied or short-paid or erroneously refunded. Admittedly, on the date of show cause notice I.e., 06/10/2004 the provisions contained in Section 73(1) (a) of the said Act, prevailing prior to 10/09/2004, were not in existence. In other words, the statutory provision under which the show cause notice issued was not in existence as on that date. The provision as on 06/10/2004 prevailing was inserted vide Finance Act, 2004 with effect from 10/9/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant that against the Service tax payment column appellant has declared to have made full payment but under some months duty paying challan number are also indicated. In a true disclosure where such challan numbers are not mentioned appellant should have declared Service tax paid in the relevant months as NIL instead of stating that the entire service tax of that month is also paid. No other intimation was filed by the appellant with the department to clear the air or make his intentions clear. In view of the above facts it has to be held that there was suppression of material facts by the appellant with intention to evade payment of service tax, when appellant has already collected Service tax from the service recipients Appellant can not b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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