TMI Blog2017 (3) TMI 617X X X X Extracts X X X X X X X X Extracts X X X X ..... Financial hardship cannot be pleaded against penal action when the tax collected is not remitted to the Government and used for other expenses - penalty upheld - appeal dismissed - decided against appellant. - Service Tax Appeal No. 390 of 2011 - Final Order No. 50680/2017 - Dated:- 8-2-2017 - Shri S.K. Mohanty, Member (Judicial) and Shri B. Ravichandran, Member (Technical) Shri Atul Kumar Gupta, C.A. for the appellant. Shri Sanjay Jain, Authorized Representative (DR) for the Respondent. ORDER The appeal is against order dated 13/12/2010 of Commissioner of Service Tax (Adjn.), New Delhi. The appellants are engaged in providing taxable service under the category of consulting engineers. They were registered with th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ings against them should have been close in terms of Section 73 (3). 3. The learned Consultant relied on various decided cases to state that penalty cannot be imposed when the assessee discharged the service tax liability before the issue of show cause notice. These decisions are examined later in this order. 4. The learned AR submitted that the appellants were registered with the Department for discharging service tax liability. They are well aware of the statutory requirements. They have mis-stated regarding payment of service tax when the enquiry was conducted by the officers of Ranchi Commissionerate. They have wrongly stated that they were centrally registered with Delhi Service Tax Commissionerate and discharged the service tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for other expenses. Regarding the case laws referred to by the appellant, we note that none of them will come in aid of their case. In Gupta Metallics Power Ltd. vs. CCE, Nagpur reported in 2016 (44) S.T.R. 681 (Tri. Mumbai) , the Tribunal was dealing with bonafide mistake of the appellant not declaring certain amount received as commission. In Vista Infotech vs. CST, Bangalore reported in 2010 (17) S.T.R. 343 (Tri. Bang.), the Tribunal is dealing with a case of delay in payment of service tax for the period January to June 2007 which was paid on 5th and 19th July, 2007. The decision of Hon ble High Court of Karnataka in CCE ST, LTU, Bangalore vs. Adecco Flexione Workforce Solutions Ltd. reported in 2012 (26) S.T.R. 3 (Ka ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . CCE, CST, Vadodara II reported in 2015 TIOL 1458 CESTAT AHM. , the Tribunal held that when the tax was recovered and not paid to the Department, it is clearly a case of evasion of tax with intention. In the present case also, we note that the appellant did not file statutory returns indicating the provision of service and receipt of taxable income and accordingly we are in agreement with the lower Authority regarding imposition of penalty on the appellant. 6. The learned Consultant for the appellant submitted that certain amounts of service tax paid in normal course was also taken into account while imposing penalty by the Original Authority. In this connection, we note that there is no co-relation that any regular payment m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s (P) Ltd. vs. Union of India reported in 2008 (228) E.L.T. 31 (Del.) to state that the Original Authority should have mentioned the availability of option to pay 25% of penalty within one month of the order. We note that the Hon ble Delhi High Court examined the provisions of Section 11AC of Central Excise Act, 1944 and expressed opinion that in order to avoid uncertainty in following the compliance of said penal provision, the Adjudicating Authority should explicitly state the option available in the order. We note, same issue came up before the Hon ble Bombay High Court also in CCE, Raigad vs. Castrol India Ltd. reported in 2012 (286) E.L.T. 194 (Bom.) . The Hon ble Bombay High Court held that nonmentioning of option will not viola ..... X X X X Extracts X X X X X X X X Extracts X X X X
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