TMI Blog2019 (6) TMI 689X X X X Extracts X X X X X X X X Extracts X X X X ..... he imposition of penalty and is based on the fact that there is no willful suppression on the part of the appellant as all the due liabilities had been declared in ST-3 Returns, though not paid over to the Revenue. Section 78 of the Finance Act, 1994, equivalent penalty can be imposed in cases of willful misstatement or suppression of facts or for contravention of any of the Act or Rules made thereunder with an intent to evade payment of service tax. In this case, it cannot be disputed that the appellant after having recovered the service tax from its customer had not paid over the amount to the State. Thus, undeniably they have contravened the Finance Act, 1994 and Rules made thereunder, which obliges the assessee to make over the payme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Decorator Services, Design Services, servicing of Motor Vehicle and Management Consultancy Services. 4] On a surprise visit by the Officers of Revenue on 3rd December 2012, it was found that the appellant had not paid service tax from December 2011 onwards. Thus, the Show Cause Notice dated 25th February 2014 was issued demanding service tax along with interest and also imposing penalty. In the meantime, the respondent had deposited the service tax payable by them from the period December 2011 to March 2013 for which the Show Cause Notice was issued. In its reply to the above notice, the appellant pointed out that they are not contesting the demand of service tax which has now been paid. However, non-payment of service tax was onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of facts and / or willful misstatement on its part. This is evident, he submits from their ST-3 Returns, where the appellant had made complete disclosure of their service tax liability even though the same was not paid to the Revenue. Further, he placed reliance upon the decision of the Tribunal in case of Onward E-Services Ltd.. Vs. Commissioner of Service Tax, Mumbai-II 2019 (21) GSTL 167 to contend that in similar facts, the Tribunal held that no penalty is imposable. 7] Mr. Jetly, learned counsel appearing on behalf of the Revenue, supported the impugned order of the Tribunal and submits no interference is warranted. 8] The admitted position before us is that the extended period of limitation invoked for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses of willful misstatement or suppression of facts or for contravention of any of the Act or Rules made thereunder with an intent to evade payment of service tax. In this case, it cannot be disputed that the appellant after having recovered the service tax from its customer had not paid over the amount to the State. Thus, undeniably they have contravened the Finance Act, 1994 and Rules made thereunder, which obliges the assessee to make over the payment to the Government before the specified date. This non-payment was certainly with intent to evade the service tax as there was no justification for keeping the amounts recovered from the customer with itself and not passing it over to the Government on whose behalf it is collected. The finan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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