TMI Blog2016 (3) TMI 529X X X X Extracts X X X X X X X X Extracts X X X X ..... e department has not invoked any other provisions of service tax law/rules for punishing the default in getting the addition/modification/amendment to their existing registration. Therefore, penalty imposed is set aside. - Decided in favour of assessee - ST/1750/2012-SM - Final Order No. 20172 / 2016 - Dated:- 28-1-2016 - SHRI ASHOK K. ARYA, TECHNICAL MEMBER For the Petitioner : Mr. Rajesh Kumar, C.A. For the Respondent : Mr. Mohammad Yusuf, A.R. ORDER PER : ASHOK K. ARYA Both the parties have been heard in detail. 2. Appellant namely M/s Rajapur Minerals were issued show-cause notice for liability of service tax on their output service namely supply of tangible goods service which was introduced and made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al before Commissioner of Customs (Appeals), Mangalore, who upheld the order-in-original passed by Addl Commissioner, Belgaum with the modification that penalty of ₹ 5000/- under Section 77 (1)(b) of Finance Act 1994 set aside . 4. The appellant namely M/s Rajapur Minerals is now before this Tribunal contesting order-in-appeal passed by Commissioner (Appeals). Learned Chartered Accountant Shri Rajesh Kumar appearing for the appellant vehemently argues that they all along had sufficient CENVAT credit and they had no intention not to pay service tax to the Govt Exchequer; there was confusion during the relevant period as this levy was introduced during that period only i.e. 16.05.2008. There was no liability on them to pay service ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s is clearly proved that appellant collected the tax from their customers but did not want to pay, therefore, there cannot be any leniency towards the present appellant. Learned A.R.is relying upon the following case laws in this regard: 1) Ketan Engineering Services Pvt Ltd Vs CCE ST Surat [2014(36)STR 196 (Tri-Ahmd)] 2) Bajrang Security Services Vs CST Ahmadabad [2010(19)S.T.R. 577(Tri- Ahmd)] 3) Triton Communication Pvt Ltd Vs CCE Mumbai [2007(6)STR 58 (Tri-Mumbai)] 4) Sai Machine Tools Pvt Ltd Vs CCE C, Indore [2006(203)ELT 15 (MP)] 5) Gokul Associates Vs CCE Surat-II[2013(30)STR 306 (Tri-Ahmd)] 6. The facts on record and the submissions of both sides have been carefully considered. From the facts on re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey themselves were collecting service tax from their customers on the said services, though under the name of machinery hiring services . 6.1 Learned advocate for the appellant cites various case laws given above saying that they always had sufficient CENVAT credit in their account and they paid the service tax finally from the CENVAT account. The fact that they had sufficient balance does not wash off their sin of non-payment of service tax, when the same was due to the govt. These case laws have different facts. Here In these case laws, intention to evade due service tax was not proved; there could be delay in payment of service tax or some other reasons but not deliberate intention of the assessee to evade the tax. The learned advoca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nancial difficulty, appellant was required to file the periodical returns indicating therein the correct service tax liability. Had the appellant filed such returns showing correct duty liability, which he had already recovered, may be appellants bona fides could have been accepted. In the present case, appellant recovered the entire service tax from their customers and also did not file periodical prescribed returns with the Revenue. Non filing of returns and non-payment of service tax, in spite of collecting the same from the customers, clearly convey mala fide on the part of the appellant making them liable to penalty under Section 78 of the Finance Act, 1994. The case laws relied upon by the appellant does not pertain to a situation wh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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