TMI Blog2016 (2) TMI 174X X X X Extracts X X X X X X X X Extracts X X X X ..... tion was never raised before the Tribunal and being a mixed question of law and facts, we do not permit same before us for the first time. However, if it is open for the appellant to file a rectification application before the Tribunal on such basis, we do not prevent him from doing so. Tax Appeal is therefore dismissed. - Decided against the asessee. - TAX APPEAL NO. 111 of 2016 - - - Dated:- 28-1-2016 - MR.AKIL KURESHI AND MR. MOHINDER PAL, JJ. FOR THE APPELLANT : MR PARITOSH GUPTA FOR MR PARESH M DAVE, ADVOCATE ORAL ORDER (PER : HONOURABLE MR.JUSTICE AKIL KURESHI) 1. Assessee has filed this appeal challenging judgment of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) dated 29.6.2015 raising follow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Tribunal imposed under Section 78 of the Finance Act, 1994 and (2) with respect to penalty imposed under Section 77 of the said Act. 3. As is well known, Section 78 of the Finance Act, 1994 provides for penalty for suppressing etc. of value of taxable services. Sub-section (1) thereof provides for a penalty on any service tax not paid or not levied or short-levied or short paid or erroneously refunded, by reason of fraud, collusion, willful mis-statement, suppression of facts or contravention of any of the provisions or the act and rules made with intent to evade payment of service tax. 4. In the present case, before the Tribunal as well as before us, it was contended that such penalty could not have been imposed in view of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Bench in case of Bhagwati Caterers Pvt Ltd V/s. CST, Ahmedabad (supra) as pointed out by the Learned Authorized Representative, appearing on behalf of the Revenue. Appellant has also not filed required periodical returns Revenue could detect none payment of Service Tax as a result of special investigation. It is not the case where the appellant was not registered with Central Excise Dept and could claim ignorance of law. By recovering the Service Tax from their service recipients and not paying the same to the Dept. has to be considered as evasion of Service Tax with intention to evade when no periodical returns were filed. In view of the above observations, there is no reason to interfere with the order passed by the lower authorities an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 77 or section 78, no penalty would be imposable when the assessee proves that there was reasonable cause for the failure to pay the tax. In the present case, assessee could not demonstrate the reasonable cause for not paying the tax. As noted by the Tribunal, case of financial hardship was not even pleaded. 8. Section 73 of the Act pertains to recovery of service tax not levied or paid or short-levied or short-paid or erroneously refunded. Sub-section (1) there of pertains to recovery of such taxes by issuance of show cause notice. Sub-Section (2) requires Central Excise Officer to consider the representation of the assessee if so made in response to show cause notice and determine the amount of service tax due from the assessee. Sub-sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de out any case for interference. 11. Counsel lastly contended that by virtue of proviso to Section 78, if the tax demand is based on records maintained by the assessee the penalty would be 50% of otherwise imposable. He pointed out that the term specified record used in the said provision has now been defined by including an explanation to Section 78. However, we notice that such a contention was never raised before the Tribunal and being a mixed question of law and facts, we do not permit same before us for the first time. However, if it is open for the appellant to file a rectification application before the Tribunal on such basis, we do not prevent him from doing so. Tax Appeal is therefore dismissed. - - TaxTMI - TMITax - Servi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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