TMI Blog2015 (11) TMI 1044X X X X Extracts X X X X X X X X Extracts X X X X ..... merely in the nature of ex abundante cautela and therefore has retrospective applicability. - Decided against the assessee. Benefit of Notification No. 12/2003-ST - benefit thereof can be granted only if the assessee is able to produce documentary evidence showing the value of the goods sold. As has been brought out by the original adjudicating authority as well as by the appellate authority, the appellant-assessee was not able to provide documentary evidence regarding the value of such goods and therefore benefit of the said notification was rightly denied to them. Indeed the lower authority in the absence of the documentary evidence of the value of the goods sold allowed 40% abatement in terms of notification 1/2006-ST which the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d been imposed. Revenue is also in appeal against the said order-in-appeal on the ground that during the relevant period, penalties under Sections 76 and 78 were not mutually exclusive and therefore the Commissioner (Appeals) order setting aside the penalty under Section 76 is not legal and proper and sought restoration of penalty under Section 76. 2. The appellants-assessee is providing Mandap Keeper service during which they also provided food/beverages. As the appellant-assessee was not able to provide evidence with regard to the value of the goods sold, the service tax demand was confirmed by giving 40% abatement. It is also seen that the appellant-assessee had not claimed the benefit of Notification No. 12/2003-ST in their ST-3 retu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the said explanation added on 1.6.2007 was merely in the nature of ex abundante cautela and therefore has retrospective applicability. 4. As regards the contention of the appellant-assessee that benefit of Notification No. 12/2003-ST should have been extended to them, we would like to reproduce the said provision hereunder : In exercise of the power conferred by Section 93 of the Finance Act, 1994 (32 to 1994), the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts so much of the value of all the taxable services, as is equal to the value of goods and materials sold by the service provider to the recipient of service, from the service tax leviable thereon under Section (66) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /08-09 15.9.2008 Recurring nature The show cause notices dated 18.10.2007 and 15.9.2008 were merely recurring in nature for the periods subsequent to period covered by the first show cause notice dated 2.3.2007 and therefore in the given circumstances in the light of the Supreme Court judgement in the case of Nizam Sugar Factory Vs. CCE - 2006 (74) RLT 564 (SC), the allegation of wilful mis-statement or suppression of facts on the part of assessee in respect of the two Show Cause Notices dated 18.10.2007 and 15.9.2008 cannot be sustained and consequently penalty under Section 78 of Finance Act, 1994 in respect of the said two Show Cause Notices cannot be sustained. As the Commissioner (App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder section 76 of the Act. In such situation, even if reasoning given by the appellate authority that if penalty under section 78 of the Act was imposed, penalty under section 76 of the Act could never be imposed may not be correct, the appellate authority was within its jurisdiction not to levy penalty under section 76 of the Act having regard to the fact that penalty equal to service tax had already been imposed under section 78 of the Act. This thinking was also in consonance with the amendment now incorporated though the said amendment may not have been applicable at the relevant time. Similarly, in the case of CCE Vs. First Flight Courier - 2011-TIOL-HC-P H-ST, the Punjab Haryana High Court in effect held that penalty under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X
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