TMI Blog2015 (10) TMI 2461X X X X Extracts X X X X X X X X Extracts X X X X ..... equest and not get covered under technical inspection and certification services - No service tax liability on part of assessee as same has been complied with interest - Held That:- Respondent cannot be allowed to re-argue entire case on merits and it was for him to put forth all his submission on merits of case when its appeal was being heard - Period from 18/04/2006, penalty as imposed under Section 76 has to be applied in letter and spirit of said section and provisions as it stood in the statute needs to be applied - Decided in favour of Revenue. - APPEAL NO: ST/297/2009 - Final Order No. A/2670/2015-WZB/STB - Dated:- 17-8-2015 - Shri M V Ravindran, Member (Judicial) And Shri C J Mathew, Member (Technical) Shri R.K. Das, Dy. Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... discharged service tax liability. It is his submission that the assessee has filed an application for arguments on non-taxability in this appeal which should not be allowed to be argued as the issue has already been decided. It is his prayer that the appeal of the Revenue be allowed. 4. The learned sr. advocate appearing on behalf of the respondent would submit that the issue involved in this case, though is in respect of enhancement of penalty, the issue needs deeper consideration. He would submit that the appeal of the Revenue should be dismissed as the question of imposing the penalty arises only when the tax liability is there. He would submit that service tax liability has been worked out on the respondent on cargo handling, repairs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , law is settled by the apex Court in the case of CIT vs. Anwar Ali 1970 (2) SCC 185. It is his further submission that Section 76 contemplates all payments of imposition of penalty in addition to the service tax liability and interest thereof; which in the case in hand, is absent as the tax liability and interest are already paid as on date of order-in-original. He would refer to the decision of the Hon ble High Court of Bombay in the case of ICICI Bank Ltd. vs. Union of India 2015-TIOL-1164-HC-MUM-ST for the proposition that law enforcers cannot be permitted to do something which is not permissible within the four corners of law and that the case in hand when service tax liability does not arise, no penalty can be imposed. He would also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2/2014 and a detailed order has been passed in final order No. A/476/14/CSTB dated 28/02/2014 and we have held that the respondent-assessee in this appeal and the appellant in that appeal has no case and the appeal was dismissed. We were informed by the arguing counsel that the assessee in appeal before the Hon ble High Court. 8. In order to appreciate the Revenues appeal it is necessary to reproduce the provisions of Section 76 as it stood for the period 18/04/2006 onwards. 76. Penalty for failure to pay service tax:- Any person, liable to pay service tax in accordance with the provisions of section 68 or the rules made under this Chapter, who fails to pay such tax, shall pay, in addition to such tax and the interest on that tax i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t argue the matter on merits before us. The provisions of Section 76 as reproduced herein above are very clear and the respondent has to pay the penalty as per the provisions effective from 18/04/2006 which is ₹ 200/- per day or 2% of the tax amount per month during the default period. 11. The various case laws cited by the learned counsel to argue the matter before us on merits will not carry the case of the respondent any further, as, on merits we have already held against the appellant in final order dated 28/02/2014. The various case laws which has been cited by the learned sr. advocate are in respect of a situation wherein there was no factual matrix was involved and appeals were not dismissed by the Tribunal on merits. Since ..... X X X X Extracts X X X X X X X X Extracts X X X X
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