TMI Blog2018 (8) TMI 488X X X X Extracts X X X X X X X X Extracts X X X X ..... ursed the service tax amount by the service tax recipient - merely for this reason, the appellant cannot be absolved from the liability of payment of service tax. Therefore, this lame excuse does not help the appellant - the appellant could not make out any case for waiver of penalties under section 80. However, the penalties under different sections 76 and 78 of Finance Act, 1994 shall not be imposed simultaneously, thus, penalty u/s 76 set aside, while upholding penalty u/s 78. Appeal allowed in part. - Appeal No.: ST/90/2011-DB - A/11218/2018 - Dated:- 31-5-2018 - Shri Ramesh Nair, Member (Judicial) And Shri Raju, Member (Technical) For Applicant(s): Sh. Dhaval Shah (Advocate) For Respondent(s): Sh. J. Nagori (AR) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alties under section 76 78 cannot be imposed simultaneously as held by Hon ble Gujarat High Court in the case of Rawal Trading Company vs. Commissioner of Service Tax 2016 (42) S.T.R. 2010 (Guj.). He further submits that the penalty under section 76, 77 and 78 in the facts of the present case may be waived by section 80 of the Finance Act, 1994. He also placed his reliance on the Hon ble Delhi High Court s judgement in the case of Bharat Hotels Ltd. 2018 (12) G.S.T.L. 368 (Del.). 3. On the other hand, Shri J. Nagori, Ld. Additional Commissioner (AR) appearing on behalf of the Revenue reiterates the impugned order. He further submits that the penalty was rightly imposed for the reason that the appellant though obtained the registration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bsolved from the liability of payment of service tax. Therefore, this lame excuse does not help the appellant. This issue has been considered by this tribunal in the case of Avtar Co. (supra) wherein this tribunal clearly held that the service tax liability is not dependent whether the service recipient makes the payment of service tax or not. Taxable event is the rendering of service and liability has to be discharged on receipt of consideration. Therefore, merely because the service recipient did not pay the service tax liability, that would not take away/ obliterate the liability on service provider to discharge the tax. Therefore, the appellant could not make out any case for waiver of penalties under section 80. However, as held by t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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