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M/s. DS Service Versus Commissioner of Central Excise & S.T., Vadodara

2016 (1) TMI 668 - CESTAT AHMEDABAD

Penalty imposed under Section 78, and also under Section 76 and 70 - service tax was paid before issuance of SCN - Held that:- Considering that the appellant is a proprietorship concern and the services were rendered to a Private Limited Company in organised sector and the services were duly recorded in the books of accounts, and also considering the financial difficulties of the proprietorship concern and the fact that they have paid the amount of ₹ 7,43,141/- before issuance of show caus .....

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order-in-original with regard to imposition of penalty under Section 78. However, we set-aside the penalties imposed under Sections 76 and 70 of the Finance Act, 1994. - Decided partly in favour of assessee. - Appeal No. : ST/10071/2014 - ORDER No. A/10036/2016 - Dated:- 15-1-2016 - Mr. P.M. Saleem, Member (Technical) For the Petitioner : Shri R. Subramanya, Advocate For the Respondent : Shri S.K. Shukla, Authorised Representative. ORDER Per : Mr. P.M. Saleem The appellant herein M/s. D S Servic .....

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service tax liability of ₹ 36,60,320/- alongwith interest, and imposed equivalent penalty under Section 78, and also penalties under Section 76 and 70 of the Finance Act, 1994. The Commissioner (Appeals) vide impugned Order-in-Appeal upheld the same. Aggrieved by the same, the appellants are before us. 2. Heard both sides. The learned Counsel for the appellant at the outset itself submits that they are not contesting the liability of service tax and interest, which they have already paid, .....

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of penalties. 3. On the other hand, the learned Authorised Representative for Revenue strongly argues that the appellant had taken service tax registration in October 2007. They did not pay the service tax dues till the investigation was carried out by the officers. He submits that if there was no detection by the departmental officers, the rightful dues to the Government would have been lost. He further submits that appellant had received the full amount from M/s. Philips Electronics India Lim .....

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consideration of the arguments of both sides and careful perusal of the records, we find that the lower authorities have already considered the submissions made by the appellant at the time of consideration whether penalty should be imposed on the appellant. Commissioner (Appeals) in his impugned order has observed as follows:- 9. The appellant s main contention is that that they have not deposited the tax amount with the Government due to poor financial conditions and that they are proprietary .....

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against them filed return for the period from April 10 to Sep 10, October 2010 to March 11 and April 2011 to September 2011 that too without payment of Service Tax assessed therein. Further, the appellant has also agreed that they had collected the Service Tax from their customer but had not paid the same during the period from Sept 2007 to Sep. 2010, and that their firm had not filed any ST 3 returns from October 2007 onwards. 10I also find that the appellant has neither disputed the taxabili .....

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ility of their services or their tax liabilities. They had also been assessing their tax liabilities and collecting the same from their customer. They have pleaded to have not deposited the tax amount with the Government due to poor financial conditions. The plea of financial hardships cannot be taken as sufficient reason either for their failure to make the payments of the tax or for not levying any penalties on them. I find that they have not only collected the service tax from the service rec .....

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sion of facts with intent to evade payment of Service Tax. Therefore, I hold that the demand has been rightly confirmed raised by invoking extended period of time for demand. 11. As regards to imposition of penalties under Section 76 and 78 is concerned, I note that the adjudicating authority in the impugned order has discussed the issue in detail, an option to pay 25% of the total penalty imposed under Section 78 was given to the appellants and penalty under Section 76 has been imposed only upt .....

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