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TMI Blog2018 (10) TMI 29X X X X Extracts X X X X X X X X Extracts X X X X ..... ding taxable service in the category of "Manpower Recruitment or Supply Agency's Service and is registered under the service tax registration. On scrutiny of their records, it was found that the appellant had not discharged service tax liability for the month of May'2008, (in Appeal No. ST/465/2008), June'2008 (In Appeal No. ST/677/2008), and July'2008 (in Appeal No. ST/678/2008). The bank statements of the appellant were verified and it was found that the appellant had not paid any tax against their liability of Rs. 4,09,62,297/- for the month of May'2008, of Rs. 4,35,49,454/- or the month of June'2008 (which included past payment of Rs. 19,95,838/- for May 2008 for Pune Branch) and of Rs. 4,95,34,962/- for the mont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d service tax along with interest and sought waiver of penalty under Section 80 of the Finance Act, 1994. He argued that the delay was only on account of severe cash flow problems and there was no intent to evade payment of service tax. He relied on the following case laws. * CCE & ST,LTU, Banglore Vs. Adecco Flexione Workforce Solutions Ltd. reported in 2012 (26) STR 3 (kar). * CCE Vs. Tejas Agency reported in 2014 (34) STR 803 (Guj.) Ld. Advocate also made an alternative submission that the provisions of Section 76 were substituted in Finance Act, 2011, wherein the penalty of Rs. 200 per day was substituted as Rs. 100 per day and 2% was substituted with 1% and in view of the decision of Hon'ble High Court of Karnataka in the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the October' 2002 and this pattern of default of payment of tax continued even in the month of May' 2008 onwards. The appellant are not disputing the duty amounts and the interest amounts payable thereon. Hence, the demands of duty and interest in all the three appeals, being uncontested by the appellant are upheld. 6. As for the penalty under Section 76 of the Finance Act, 1994, the only explanation put forth by the appellant is that they had no intent to evade service tax and it was due to their other business obligations that they paid service tax late. They have argued that in order to manage their cash flow and due to financial crunch, they had delayed the payment of tax. We do not find that the grounds given by the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that for penalty under Section 78 the benefit of payment of 25% of the mandatory equal penalty as per proviso to Section 78 of the Finance Act should be given to them as the same had not been done in the impugned order. In this regard, we find that the Gujrat High Court in the case of CCE, Ahmedabad v. Ratnamani Metals Ltd. - 2013-TIOL-1124-HC-Ahd-CX = 2013 (296) E.L.T. 327 (Guj.) has held as under : "At no stage, either in the Order-in-Original or in the order of Commissioner (Appeals), the assessee respondent has been given the benefit of payment of reduced penalty - Court has followed a consistent view that the assessee is required to be given the option by the adjudicating authority where he is asked to pay a duty demand with inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d interest before the issuance of show cause notice. Hence, the decision in their earlier case is not applicable to the present cases. For the same reasoning, the decision of Tejas Agency (supra), which followed the ratio of Adecco Flexione (supra), cannot be applied to the present cases. 8. In view of the foregoing, we hold that the appellants have not been able to substantiate their claim for waiver of penalty imposed under Section 76 of the Act. Therefore, their plea for waiver of the penalty by exercising discretion under Section 80 of the Act is liable to be rejected and we do so. 9. On the alternate plea of the appellant that they should be given the benefit of the 2011 amendment in Section 76 ibid, we find that the only reason give ..... X X X X Extracts X X X X X X X X Extracts X X X X
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