TMI Blog2016 (3) TMI 671X X X X Extracts X X X X X X X X Extracts X X X X ..... the same in respect of the first show cause notice. Also the penalty can not be imposed under Section 76 because the same is not imposable after 10.05.2008 as per the provisions itself. Therefore, in view of the Tribunal decision in case of Jivant Enterprise vs. Commissioner of Service Tax, Ahmedabad [2012 (7) TMI 164 - CESTAT, AHMEDABAD], if the show cause notices are issued after the date of amendment, penalties under Section 76 and 78 simultaneously cannot be imposed and hence setting aside the penalty under Section 76 is uninterferable. - Decided partly in favour of the Revenue - Appeal No. ST/13127/2013 - - - Dated:- 22-1-2016 - P. M. Saleem, Member (T) For the Appellant : Shri S K Shukla, AR For the Respondent : Shri Abh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x liability for the period 2007-08 to 2010-11 covered under two show cause notices comes to ₹ 43,99,070/-, as detailed in the table below:- Year 2007-08 2008-09 2009-10 2010-11 Amount of sundry debtor for last F.Y. 0 2237114 3217922 4506939 Billed Amount for the current F.Y. 4468682 7423170 10800176 31450936 Amount of sundry debtor for the current F.Y. 2237114 3217922 4415938 13262796 Net ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the Bench to the fact that the Respondents were availing the CENVAT credit on the inputs received, which indicate that the Respondents were fully aware of the provisions and procedures. He therefore, strongly argued that the non-payment of service tax was intentional and if it had not been for detection by the department, the same would have escaped the tax net. Therefore, he submits that the penalties under Sections 76 and 78 are justified. 3. On the other hand, the learned Chartered Accountant appearing for Respondents submits that they are not contesting the demand of service tax liability and 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... available in the specified records. He submits that the show cause notice was issued on 30.08.2011 and therefore, these provisions may be considered as applicable, and the penalty may be reduced to 50%, as a worst case scenario. 4. On careful consideration of the arguments of both sides and perusal of the records, we observe that the Respondent had taken registration in April 2008 and was also availing CENVAT credit on the inputs. Therefore, we find force in the arguments of the learned Authorised Representative for Revenue that the Respondent was aware of his responsibilities and procedures and non-payment of service tax on due dates were not a mistake. Normally in such cases, we would have held that penalty under Section 78 is justifi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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