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TMI Blog2016 (3) TMI 529X X X X Extracts X X X X X X X X Extracts X X X X ..... rom 16.05.2008 to 31.12.2008. 2.1 The Revenue department visited the appellants business premises based on intelligence that they were indulging in evasion of service tax on machinery hiring services being rendered to their clients without applying for registration. Vide show-cause notice dated 19.11.2009, the appellants were asked to pay Rs. 18,85,649/- along with interest and Sections 76,77 & 78 of the Finance Act 1994 were invoked for imposition of penalties. It was mentioned in the show-cause notice that the liability of service tax of Rs. 18,85,649/- was paid by the assessee through debit in CENVAT credit account. 2.2 The show-cause notice was adjudicated by the Addl. Commissioner confirming the demand of service tax of Rs. 18,85, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , learned advocate has pleaded that they were already registered with the department under other services such as Business Auxiliary Services (BAS), and Goods Transport Agency Services and were paying tax. Therefore non-addition of service in registration for the new levy under Supply of Tangible Goods should not be held against them. This penalty under Section 77 (1)(a) should be dropped. 4.1 Learned advocate has cited in support the following case laws: 1) CCE Pune Vs Siddheshwar Textile Mills Pvt Ltd [2015(320)ELT 524 (Bom)] 2) Aditya Industries Vs CCE Hyderabad [2007(220)ELT 196(Tri-Bang)] 3) Dy Commr of C.Ex Thrissur- I Vs Apollo Tyres Ltd [2012(281)ELT 370(Ker) 4) Oil & Natural Gas Corporation Ltd Vs CCE & ST Surat [2015(38)S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y were not collecting from all the customers. When the appellant was collecting service tax from their customers, it was their bounden duty to deposit such service tax with the Govt Exchequer. Arguments of the appellant that this levy on the service of "supply of tangible goods" was newly introduced with effect from 16.05.2008 does not hold sufficient force as based on the intelligence that the appellant assessee was evading payment of service tax, they were visited by the Revenue department on 26.11.2008 and it was found out that the appellant assessee did not add the new category of service namely "supply of tangible goods services", (which was called as "machinery hiring services" in their case as they were supplying machinery on hire ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... denied; here also assessee was allowed to make payments through CENVAT credit and there is no denial of any kind of benefit on account of CENVAT credit. The appellant assessee was allowed to pay by adjustment against the credit which was available with them. Strictly speaking, the decision in the case of M/s Aditya Industries (supra) will not come to their rescue when it has been proved that the appellant had been consciously collecting service tax from their customers and consciously not making payment even through CENVAT credit to the Govt Exchequer. 7. I find that the decisions quoted by the Revenue in the case of M/s Ketan Engineering Services Pvt Ltd (supra) is applicable here as there is deliberate non-payment in the face of collecti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he present proceedings and are not applicable." Similarly in the case of Bajrang Security Services (supra) and in the case of Gokul Associates (supra) there has been default in tax payment by the assessee. In case of Gokul Associates (supra) there has been non-payment of service tax when the same was collected from the customers. These case laws again support that for the present facts leniency cannot be allowed to the appellant for deliberate non-payment. 8. Considering the above discussion, the impugned order-in-appeal is upheld except that the penalty of Rs. 42,200/- imposed under Section 77 (1)(a) is found to be not sustainable, mainly on account of the fact that appellant assessee was already registered with the Service Tax departmen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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