TMI Blog2017 (3) TMI 1369X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant has not discharged the service tax liability along with interest, even though they were aware they are liable to pay the service tax. When the appellant contends that they have to be given cum tax benefit, they cannot raise the contention that the service tax has not been received from the service recipient The matter is remanded to the adjudicating authority to consider the issue of cum duty benefit only and revise the demand accordingly if eligible for the benefit. The penalties will then stand revised accordingly - appeal allowed in part by way of remand. - ST/3230 & 3231/2012 - A/30206-30207/2017 - Dated:- 10-2-2017 - Ms. Sulekha Beevi, C.S., Member (Judicial) Shri. V.A A. Ravi Kumar, Advocate for the Appellant. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issioner (Appeals) upheld the same. Hence these appeals. 3. On behalf of the appellant, the Ld. Counsel, Sh. V.A.A. Ravi Kumar, submitted that the appellants failed to discharge the service tax liability because M/s. Jaya Jyothi Cements Pvt. Ltd., did not pay the service tax for the services provided. The balance amount for the services was not received by the appellant. M/s. Jaya Jyothi Cements Pvt. Ltd. paid the service tax amount of ₹ 88,298/- only. The appellant was under bonafide belief that service tax is payable to the Government only after calculating the entire value of the services provided and therefore did not pay the service tax. It is further submitted that as the appellant had not received the service tax from M/s. J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... remand. He submitted that the penalties Imposed under Section 78, and Section 76 are reasonable and proper. The authorities below have imposed penalty under Section 78 only for the period 06/2009 to 08/2010 The appellant had collected ₹ 88,298/- towards service tax and even after taking registration of service tax did not pay the same to the Government. In respect of the demand of ₹ 9,72,649/- the Show Cause Notice is dated 17.08.2011. The appellant has paid only ₹ 5,00,000/- before the issuance of Show Cause Notice. With regard to the demand of ₹ 5,96,349/-, the Show Cause Notice is dated 20.10.2011. The authorities below after taking into consideration the facts of the case has not imposed penalty under Section 78 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... However, the facts. In the present case are different. The appellant has not discharged the service tax liability before the issuance of Show Cause Notice. Even the small portion of tax collected from M/s. JJC was not deposited. Therefore, the said Final Order cannot apply to the case before me. 7. The judgment in the case of KNR Contractors and Abyss (The Hutch Shop) (Supra) have been relied by the Ld. Counsel pleading to invoke Section 80 of the Finance Act) 1994. In the case of KNR Contractors it is observed by the Tribunal that before proceeding to impose penalty the authority Is expected to ascertain whether the assessee has established reasonable grounds for failure/ default of the assessee. The matter was then remanded for co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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