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2019 (6) TMI 689

rs/conditions for purpose of invoking the extended period of limitation under Section 73(1) of the Finance Act, 1994 are similar/identical to the conditions for imposing equivalent penalty under Section 78 of the Finance Act, 1994. In the facts of the case, the appellant had advisedly and correctly not challenged the invocation of the extended period of limitation for recovery of service tax. The challenge is only to the 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 suppre .....

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ation: Q. Whether in the facts and circumstances of the case and in law, the Tribunal was correct in holding the proviso to Section 78(1) of the Finance Act, 1994 is applicable in the facts of the present case for the purposes of imposing penalty ? 3] The appellant is engaged in providing taxable services such as Interior 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 .....

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er was upheld. 6] Mr. Waglay, learned counsel appearing for the appellant, in support of the appeal, submits that in the facts of this case no penalty was imposable upon the appellant. This in view of the fact that Section 78 of the Finance Act would have no application, as there was no suppression 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 th .....

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re 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. 10] We note that under 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 payment to the Government before the specif .....

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