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TMI Blog2018 (5) TMI 1528X X X X Extracts X X X X X X X X Extracts X X X X ..... security agency services which have been brought under the provisions of Service Tax net w.e.f. 16.10.1998. The appellant assessee were collecting service tax from their clients from September, 2002 but were not paying the service tax to the Government. The matter was investigated by the Officers of Anti Evasion Wing of the Commissionerate and a show cause notice was issued seeking to recover an amount of Rs. 6,92,729/- towards service tax + Rs. 11,063/- towards Education Cess not paid by them under the under the provisions of Section 73 of Finance Act, 1994. Interest was also demanded under section 75 and penalty was proposed to be imposed under section 76, 77 & 78 of the Finance Act, 1994. After following due process of law, the original ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons of Hon'ble High Court and this Bench has restored the appeal vide Interim Order No. 03/2017, dated 20.02.2017 and appeal No. ST/659/2009 and the matter is listed for hearing today. In appeal, the appellants prayed (i) to set aside the Order-in-Appeal No. 28/2009 (H-III) S.T, dated 29.05.2009 and (ii) to waive the pre-deposit of the dues and (iii) to stay the operation of the order. 5. Ld. Consultant of the appellants submits that the demand for service tax was made in the show cause notice from Annexures I, II & III. There was an overlap between the entries in Annexure-III and Annexure-II. The appellants paid an amount of Rs. 19,754/- towards Education Cess against confirmation of demand of Rs. 12,670/- in the Order-in-Original, thereb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant cannot claim ignorance that they are liable to pay service tax on the services rendered by them. They have collected service tax wilfully and not paid the same to the Government, hence the demand of service tax as confirmed in the Order-in- Original and modified in the Order-in-Appeal is sustainable. This point was not even pressed by the Ld. Consultant during the personal hearing today. Since they did not deposit the service tax in time, they are liable to pay interest under section 75 of Finance Act, 1944. They are also liable for penalties. 9. As far as Ld. Consultant's contention that there was an overlap between Annexure-III and Annexure-II of the show cause notice, thereby resulting in excess payment of confirmed is concerned, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be that Section 76 would also cover such situations and permit the department to levy a further penalty for default as envisaged under Section 76 of the Act over and above the penalty imposed under Section 78 of the Finance Act, 1994. In order to clarify this position, a further proviso was introduced in Section 78 making it clear that, if the penalty is payable under Section 78, the provisions of Section 76 shall not apply. In other words, with the introduction of further proviso to Section 78 whenever penalty was imposed under Section 78, no further penalty could be levied under Section 76 of the Finance Act, 1994. (11). In view of the nature of this further proviso and the relevant position of the two statutory provisions both pertai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st also be liable to pay penalty not exceeding ten per cent of the amount of such service tax. Thus, by way of this amendment, the statute has ensured that Sections 76 and 78 of the Finance Act, 1994, apply in mutually exclusive areas. In other words, the cases of non-payment of tax by reason of fraud or collusion or wilful misstatement or suppression of facts, etc., would be covered under Section 78 of the Finance Act, 1994, and all cases other than those envisaged under Section 78 would be covered under Section 76 of the Finance Act, 1994. 12. As it is now settled law, penalty cannot be imposed under section 76 of Finance Act, 1944 if it is imposed under section 78. 13. In conclusion, the Order-in-Appeal is upheld with the modification ..... X X X X Extracts X X X X X X X X Extracts X X X X
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