TMI Blog2019 (6) TMI 1071X X X X Extracts X X X X X X X X Extracts X X X X ..... hority; accordingly, the demand majority of which amount paid by the appellant is sustainable. Penalty u/s 76 and 78 of FA - HELD THAT:- The penalty under Section 76 78 both cannot be imposed simultaneously in the view of Honb le Gujarat High Court judgement in case of Raval Trading Co., Vs. CST [ 2016 (2) TMI 172 - GUJARAT HIGH COURT ], accordingly, penalty imposed under Section 76 is set aside - As regard penalty imposed under Section 78, as per the appellant s submission, the non payment of service tax is due to financial difficulties. It is also observed that the appellant have recorded the transaction in their books of account and from which only audit could point out the non payment of service tax. With these facts, the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es but short paid the service tax during said period. That for the period 2008 09 the income shown in Balance Sheet was ₹ 42,02,90,252/- liable for service tax amount of ₹ 4,60,46,112/- whereas as per service tax returns the assessee has paid tax of ₹ 3,24,01,120/- . Thus they have short paid service tax amount of ₹ 1,36,44,992/-. The Appellant later paid the said amount. Also for the year 2009 10, the Appellant did not pay service tax or file returns. Shri Anil Ramsahay Agarwal, the Manager (Accounts) of the Appellant in his statement informed the officers that they could not pay service tax due to huge amount of expenditure incurred for repair and maintenance of dredgers. That the value of services shown less ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he transactions were recorded in books of accounts and during audit it was known. Further that service tax amount of ₹ 2,68,84,535/- was paid even before issue of show cause notice hence there cannot be any penalty under section 76, 77 and 78. He relies upon judgment in case of Adecco Flexion Workforce Solutions Ltd. 2011 TIOL 635 HC KAR. He also submits that they are also eligible for cenvat in respect of duties paid on capital goods and service tax on input services. 3. Ms. Nitina Nagori, Ld. AR appearing for the revenue reiterates the findings of the impugned order. He further submits that the short payment of service tax during the year 2008 09 came during audit and thereafter on further investigation it was fou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be imposed simultaneously in the view of Honb le Gujarat High Court judgement in case of Raval Trading Co., Vs. CST 2016 (42) STR 210 (Guj.), accordingly, penalty imposed under Section 76 is set aside. As regard penalty imposed under Section 78, we find that as per the appellant s submission, the non payment of service tax is due to financial difficulties. It is also observed that the appellant have recorded the transaction in their books of account and from which only audit could point out the non payment of service tax. With these facts, the appellant has made out a strong case for waiver of penalty under Section 78 invoking Section 80 of the Finance Act, 1994. The Section 80 is reproduced below: Penalty not be imposed in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where the immunity to the assessee is provided under Section 80, therefore, these judgments are clearly distinguished. In the present case, the appellant have recorded the transaction in their books but could not pay the service tax due to financial crisis. It is also fact that the appellant had paid the majority of amount after pointing out non payment of service tax. Considering this fact, we are of the view that the appellant have made out a case for waiver of penalty imposed under Section 78 invoking Section 80 of the Finance Act, 1994. Therefore, despite the extended period of demand is invoked, the penalty imposed under Section 78 is though sustainable otherwise, but in the facts and circumstances of the case, there is reason to invo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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