TMI Blog2017 (8) TMI 439X X X X Extracts X X X X X X X X Extracts X X X X ..... ty set aside - appeal allowed - decided partly in favor of appellant. - Appeal No. ST/478/12 - A/88785/17/STB - Dated:- 31-7-2017 - Shri Ramesh Nair, Member (Judicial) And Shri Raju, Member (Technical) Shri Vinay Jain, C.A. for Appellant Shri M.P. Damle, Assistant Commissioner (A.R) for respondent ORDER Per : Ramesh Nair The fact of the case is that the appellant during the period April 2005 to March 2008 provided services of Goods Transport by Road to some of their customers, issued invoices for transportation charges and service tax thereon and also recovered the same from them. They failed to pay the service tax amount so collected by them to the Government account. During the said period they also provided servi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tax ₹ 3,17,169/- + Ed. Cess ₹ 6,344/- +H. Ed. Cess ₹ 2,311/-) towards the service of goods transport by road provided to non specified persons under the provisions of sub-section (2) of Section 73 of Finance Act, 1994. (iii) I confirm service tax amounting to ₹ 44,725/-(S.Tax ₹ 43,777/- + Ed. Cess ₹ 873/- +H. Ed. Cess ₹ 73/-) towards the service of rent a cab operator provided by them under the provisions of sub-section (2) of Section 73 of Finance Act, 1994. The amount of ₹ 44,725/- confirmed above is appropriated from the amount already paid. (iv) I order to pay the interest on the confirmed demands (i), (ii) and (iii) above under section 75 of the Finance Act, 1994 by M/s. G.V. Al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 73A (4) of Finance Act, 1994 the penalty under Section 78 was imposed. He submits that the penalty under Section 78 is imposable only in respect of that duty which was determined under Sub-Section (2) of Section 73 of Finance Act. However the penal provision of Section 78 is not applicable in a case where the service tax is determined under Section 73A(4) of the Finance Act. In this regard he placed reliance on the following judgments. (i) Ajay Kumar Gupta Vs. CESTAT 2015 (39) STR 736 ( P H) (ii) Gannon Dunkerley Co. Ltd. Vs. Commissioner of Service Tax, Mumbai CESTAT Order No. A/86642/17/STB dt. 15.3.2017 (iii) Commissioner of Customs Central Excise Vs. Sachin Malhotra 2015 (37) STR 684 (Uttarakhand) Therefore the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epresenting service tax, such person shall forthwith pay the amount so collected to the credit of the Central Government. (3) Where any amount is required to be paid to the credit of the Central Government under sub- section (1) or sub-section (2) and the same has not been so paid, the Central Excise Officer shall serve, on the person liable to pay such amount, a notice requiring him to show cause why the said amount, as specified in the notice, should not be paid by him to the credit of the Central Government. (4) The Central Excise Officer shall, after considering the representation, if any, made by the person on whom the notice is served under sub-section (3), determine the amount due from such person, not being in excess of the amount s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion can only be imposed when service tax is determined under Sub-Section (2) of Section 73. However, in the present case admittedly the service tax was determined under Section 73A(4) of the Finance Act, 1994. Therefore the penal provisions of Section 78 is consequentially not applicable in the case of demand of service tax determination under Section 73A(4). We also take a note that Section 73A(4) came into effect from 18.4.2006 and the period involved in the present case is from 2005-06 and 2006-07. However, even during the period 2005-06, Section 78 provides that a penalty can be imposed in case of non-payment of service tax which is determined under Section 73(2) of the Finance Act. Therefore even during the period 2005-06 penalty under ..... X X X X Extracts X X X X X X X X Extracts X X X X
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