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Commissioner of Central Excise & S.T., Rajkot Versus M/s. Oyster Maritime India Pvt. Limited

2016 (1) TMI 923 - CESTAT AHMEDABAD

Levy of penalty u/s 76 and 78 - waiver u/s 80 - delay in payment of service tax - earlier have not filed ST-3 returns and have not remitted the service tax collected from the customers to the Govt. exchequer - only after the investigation was started the Respondents started paying the service tax though belatedly. - Held that:- There is enough reason to view the non-payment of service tax on due dates by the Respondents leniently. It is observed that the Respondents have paid almost the entire a .....

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t of the first show cause notice dated 30.08.2011, provided that the Respondents pay the said amount within thirty days from the receipt of this order. - Decided partly in favor of assessee. - Appeal No. : ST/13126/2013 - Order No. A/10050/2016 - Dated:- 22-1-2016 - MR. P.M. SALEEM, MEMBER (TECHNICAL) For the Petitioner : Shri S.K. Shukla, Authorised Representative For the Respondent : Shri Abhishek Doshi, Chartered Accountant ORDER Per : Mr. P.M. Saleem Revenue has filed this appeal aggrieved b .....

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tax collected from the customers to the Govt. exchequer except for a meagre sum which was paid by way of adjusting cenvat credit taken on the inputs. The adjudicating authority confirmed the demand of service tax alongwith interest, and imposed penalties, including penalties under Section 76 and 78 of the Finance Act, 1994. In the appeal filed before the Commissioner (Appeals), the Respondents have not contested the service tax liability or interest thereupon. However they contested levy of pen .....

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76/-, as detailed in the table below:- Year 2007-08 2008-09 2009-10 2010-11 Amount of sundry debtor for last F.Y. 0 771399 2010618 1879095 Billed Amount for the current F.Y. 917534 5377109 6723043 9922263 Amount of sundry debtor for the current F.Y. 771399 2010618 1879095 4769796 Net realised amount for the F.Y. on which S.Tax required to be paid (a)+ (b) - (c) 146135 4137890 6854566 7031562 Rate of service tax 12.36% 12.36% 10.30% 10.30% Amount of service tax payable 18062 511443 706020 724251 .....

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their customers, and this amount includes the Service Tax component also. Therefore, the Respondents were duty bound to remit the service tax amount collected by them from their customers to the Government on due dates. He also contends that Respondents were aware of their responsibilities and obligations as they were a registered service tax assessee from April 2008. He also drew attention of the Bench to the fact that the Respondents were availing the CENVAT credit on the inputs received, whic .....

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interest thereon. Their plea is that the imposition of penalty under Section 76 and 78 is harsh, as they were not in a position to pay the service tax amount because of their financial constraints. He submits that huge payments from the customers were outstanding as is evident from the table in the OIO (which is reproduced at Para 2 above), and therefore they were finding it difficult to run the business itself. He further submits that there was no intention to evade the service tax and the amo .....

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bmits that there are provisions that no penalty can be imposed under Sections 76 and 78 simultaneously and the said provisions are applicable for the period prior to 10.05.2008 also. He relied upon the decision of the Tribunal in the case of Jivant Enterprise vs. Commissioner of Service Tax, Ahmedabad - [2012] 27 taxmann.com 196 (Ahd. CESTAT). He also draw our attention to the amendment made in Section 78 of the Finance Act, 1994 from 01.4.2011 to the effect that penalty shall be reduced to 50% .....

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