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TMI Blog2017 (8) TMI 439X X X X Extracts X X X X X X X X Extracts X X X X ..... to pay the service tax amount so collected by them to the Government account. During the said period they also provided services of Rent-a-Cab and recovered charged from their customers, on which no service tax was paid. They also failed to obtain service tax registration for these two services namely Goods Transport by Road and Rent-a-Cab. Regarding services of goods transported by road, they have provided the service to the persons who are specified under Clause (v) of Rule 2(d) of the Service Tax Rules, 1994. In respect of which, the appellant was neither liable to pay the service tax nor to collect the service tax. However they have collected the service tax but not deposited on the due date. They also provided the services to non-speci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Finance Act, 1994 by M/s. G.V. Alurkar. The partial amount of interest of Rs. 4,45,470/- already paid is adjusted against the total interest liability. (v) I impose a penalty of Rs. 70,13,246/- on M/s. G.V. Alurkar under Section 78 of the Finance Act 1994. However; I give option to pay 25% i.e. Rs. 17,53,312/- if they pay the total amount of Service Tax and total interest and reduced penalty within 30 days from the date of communication of this order. (vi) I also impose penalty of Rs. 5,000/- on M/s. G.V.Alurkar, under Section 77 of the Finance Act 1994 and I also refrain from imposing penalty under Section 76 of the Act ibid. Being aggrieved by the aforesaid impugned order, appellant filed this appeal. 2. Shri Vinay Jain Ld. Charter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... posed by the adjudicating authority is illegal and without authority of law. 3. On the other hand, Shri M.P. Damle, Ld. Assistant Commissioner (A.R.) appearing on behalf of the Revenue reiterates the findings of the impugned order. He submits that whether under Section 73A(4) or Section 73(1) of the Act, service tax determined, the assessee is liable to pay such service tax accordingly they are liable for penalty under Section 78 of the Finance Act. 4. We have carefully considered the submissions made by both the sides. The main issue to be decided is that whether in the facts and circumstances of this case, penalty under Section 78 is imposable. We find that the demand of Rs. 66,42,697/- was admittedly confirmed under Section 73A(4) of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , and thereupon such person shall pay the amount so determined. Penalty in the present case was imposed under Section 78 prevailing at the material time, reads as under: "78. [Where any service tax has not been levied or paid or has been short-levied or short-paid or erroneously refunded, by reason of- (a) fraud; or (b) collusion; or (c) wilful mis-statement; or (d) suppression of facts; or (e) contravention of any of the provisions of this Chapter or of the rules made thereunder with 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x which was not liable to be paid by the appellant but collected from the service recipient. We are therefore of the considered view that the penalty under Section 78 commensurate to the service tax amount of Rs. 66,42,697/- was imposed without any authority of law, and the same is not sustainable, therefore the said penalty is set aside. As regard the submission of the Ld. Counsel regarding quantification of the service tax, we perused the finding of the adjudicating authority, in this regard, and found that the adjudicating authority has considered each and every element regarding quantification in his order, which was submitted by the appellant before the adjudicating authority. Therefore, we uphold the demand of service tax as determine ..... X X X X Extracts X X X X X X X X Extracts X X X X
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