TMI Blog2016 (12) TMI 396X X X X Extracts X X X X X X X X Extracts X X X X ..... he case in hand. Similar issue fell for consideration by the Hon'ble High Court of Punjab & Haryana in the case of Ajay Kumar Gupta [2015 (5) TMI 566 - PUNJAB & HARYANA HIGH COURT] wherein the Lordships held that Once the service tax was not leviable under Section 68 at that point of time and the liability was only to deposit the tax under Section 73A(2), which has been done on 15.11.2008, after delay, but due to the service being not taxable at the relevant time when the invoices were raised, we are of the opinion that the case would not fall under the provisions of Section 78 for invoking of the penalty, as has been held by the Tribunal. It was the categorical stand of the appellant before the First Appellate Authority that the service tax had been collected by mistake, on account of the new provision and the office of the appellant was not fully acquainted with the interpretation of the statute due to which the default had occurred and therefore, in view of the defence taken, the Tribunal was not justified, in the present facts and circumstances, to hold that there was a wilful suppression of facts, to bring it within the ambit of Section 78. Penalty u/s 78 set aside - app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... support services of business or commerce which is inapplicable in the case in hand. His submission is that on merits itself the demand on the appellant will not survive. In any case the provisions of Section 73A are inapplicable and having discharged the same alongwith interest, penalty cannot be imposed on the appellant. He would submit that identical issue came up before Hon'ble High Court of Punjab and Haryana in the case of Ajay Kumar Gupta - 2015 (39) STR 736 (P H) wherein the Hon ble High Court set aside the Tribunal s order which upheld the penalty imposed under Section 78 of the Finance Act, 1994. 4. Learned D.R. reiterated the findings of the lower authorities. 5. On careful consideration of the submissions made by both sides and perusal of the records, we find that appellant herein is only contesting the penalty imposed on them under Section 78 of the Finance Act, 1994 in this appeal. The penalty imposed by adjudicating authority and upheld by first appellate authority is equivalent to the tax amount. It is undisputed that appellant had collected an amount of ₹ 50,00,000/- towards charges for extending the right to use the road for movement of men a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvices as may be notified] by the Central Government in the Official Gazette, the Service Tax thereon shall be paid by such person and in such manner as may be prescribed at the rate specified in Section 66B and all the provisions of this Chapter shall apply to such person as if he is the person liable for paying the Service Tax in relation to such service : Provided that the Central Government may notify the service and the extent of Service Tax which shall be payable by such person and the provisions of this Chapter shall apply to such person to the extent so specified and the remaining part of the Service Tax shall be paid by the service provider. 8. Section 68 provides that the person providing taxable service to any person shall pay the Service Tax at the rates specified. Admittedly, on the date the invoices were raised, the appellant was not liable to pay the Service Tax though he had collected the same. As per Section 73A(2), the person who has collected any amount which was not required to be collected from any other person, such person shall forthwith pay the amount so collected to the credit of the Central Government. Section 73A(2) reads as under : 73A(2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thereunder with the intent to evade payment of Service Tax, the person, liable to pay such Service Tax or erroneous refund, as determined under sub-section (2) of Section 73, shall also be liable to pay a penalty, in addition to such Service Tax and interest thereon, if any, payable by him, which shall be equal to the amount of Service Tax so not levied or paid or short-levied or short-paid or erroneously refunded : Provided that where true and complete details of the transactions are available in the specified records, penalty shall be reduced to fifty per cent of the Service Tax so not levied or paid or short-levied or short-paid or erroneously refunded : Provided further that where such Service Tax and the interest payable thereon is paid within thirty days from the date of communication of order of the Central Excise Officer determining such Service Tax, the amount of penalty liable to be paid by such person under the first proviso shall be twenty-five per cent of such Service Tax : Provided also that the benefit of reduced penalty under the second proviso shall be available only if the amount of penalty so determined has also been paid within the period of ..... 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