TMI Blog2017 (6) TMI 227X X X X Extracts X X X X X X X X Extracts X X X X ..... or the Respondent ORDER Per: S. S. Garg The present appeal is directed against the impugned order dated 31.7.2012 passed by the Commissioner (A) wherein the Commissioner (A) has rejected the appeal of the appellant. 2. Briefly the facts of the present case are that the appellant is a proprietary concern and is registered under Service Tax under the category of maintenance and repair services. The Department observed that the appellant was providing maintenance and repair services on Annual Maintenance Contract basis to customers and collecting service tax from customers from 2004-05. However, the appellant had neither discharged the service tax liability nor filed ST-3 returns of the relevant period and therefore, a show- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tax Rules, 1994. He also submitted that till the period 31.1.2011 service tax was payable as per Section 68 of the Act on realization basis i.e., only after the payments were received from the customers for rendering the taxable services and in the present case, payments were received months after the invoices were raised which resulted in financial hardship for the appellant, who is a small service provider. He also submitted that the non-payment of service tax was not due to collusion, fraud, active concealment of tax, hence the penalty under Section 78 is not warranted and is liable to be set aside. He also submitted that original authority while imposing equivalent penalty under Section 78 of the Act should have given the option to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r-II: 2016 (44) STR 419 (Tri.-Del.) * M/s. Sunshine Steel Corporation vs. CCE, Chandigarh-I: 2017-TIOL-617-HC-P H-CX 6. After considering the submissions of both the parties, I find that in the present case, the appellant has collected the service tax and did not deposit the same to the Government Treasury which shows that he has an intention to evade service tax. Though service tax along with interest was paid subsequently and the present appeal is only confined to penalty imposed under Section 78. In view of the judgments relied upon by the learned AR in the case of Ketan Engineering Services Pvt. Ltd. cited supra and also the decision of the Gujarat High Court in the case of Commissioner of Central Excise vs. Rajeshree Dyg. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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