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2016 (6) TMI 723

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..... s no suppression or wilful mis-statement. Once there is suppression, extended period is invocable even if Section 78 ibid penalty is not imposed by virtue of Section 80 ibid. Demand of service tax with penalty confirmed - Decided against the assessee. - ST/274/2012-CU[DB] - Final Order No.51951/2016 - Dated:- 26-5-2016 - Mr. S.K. Mohanty, Member (Judicial) and Mr. R.K. Singh, Member (Technical) For Appellant : Ms. Rinky Arora, Advocate For Respondent : Mr. Ranjan Khanna, DR ORDER Appeal has been filed against Order-in-Appeal dated 04.07.2011, which upheld the Order-in-Original dated 19.11.2010 in terms of which, inter alia, service tax demand of ₹ 36,935/- for the period 01.07.2003 to 31.03.2005 along with in .....

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..... al papers, condonation of delay application and stay application in the capacity of proprietor of the appellant. Thus, the appellant was a proprietary concern and not an individual. It is trite to say that a proprietary concern rendering the said service is a commercial concern. 5. Coming to the contention that once Section 80 ibid has been invoked to set aside penalties under Sections 76, 77 and 78 ibid, then the extended period cannot be invoked, we find that there is a clear finding by the lower authorities regarding suppression of facts and the appellant did not argue about the untenability of the said finding except to say that invocation of Section 80 ibid disables invocation of extended period for confirmation of demand. We f .....

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..... nks, Vs. Commissioner of Service Tax, Bangalore. Indeed, Section 80 ibid, inter alia, in effect states that penalty under Section 78 ibid also is not imposable in case there was reasonable cause for failure.... Penalty under Section 78 ibid can be imposed only when there is suppression/wilful mis-statement in the absence of which penalty under Section 78 ibid cannot be invoked. It is only when the penalty under Section 78 ibid is imposable that Section 80 ibid gives a window to not impose it subject to the condition contained therein. Thus, invocation of Section 80 ibid cannot necessary imply that there was no suppression or wilful mis-statement. Once there is suppression, extended period is invocable even if Section 78 ibid penalt .....

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