TMI Blog2019 (7) TMI 958X X X X Extracts X X X X X X X X Extracts X X X X ..... eed to pay the balance amount to the Department. It was submitted by the appellant that the service tax registration was not taken by them initially under the bona fide belief that they are not required collect and pay the service tax from the recipient of the service provided, that is Manpower Recruitment Service and Commercial and Industrial Construction Service . Having realised the mistake the appellant obtained the service tax registration from the Department on 07/01/2010 and started paying the service tax partially as indicated in the Show Cause Notice and in the impugned order. We also find that even after obtaining the service tax registration the appellant has not duly discharged the applicable service tax on the services pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... telligence that the appellant is not paying appropriate service tax even after collecting the said amount from their customers/ service provider for the services provided by them, the departmental officer visited the registered premises of the appellant on 26/07/2012. The appellant found to be engaged in providing services to M/s Lanco Infratech, Korba and M/s Lanco Amarkantak Power Plant, Korba. During the investigation it was found that the appellant has not paid the service tax to the Government exchequer even after receipt thereof from M/s Lanco. The statement of Shri A K Sharma, the proprietor of the company, was recorded under the provisions of Section 14 of Central Excise Act, as made applicable to service tax matter vide Section 83 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A K Sharma that there is wide gap between the figure as reflected in the balance sheet and the amount received and amount retained by service receiver; That they have also done some work relating to exempted service like relating to road work which is exempted from service tax. In nutshell, entire liability was accepted by Shri A K Sharma in his various depositions made before the departmental officer during the investigation. 4. The appellant has also paid amount of ₹ 20,00,000/- and ₹ 38,78,991/- during the pendency of proceedings which were appropriated by the adjudicating authority in the impugned order. 5. The appellant had filed an appeal on the following grounds; (i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat Ld. Adjudicating authority has wrongly imposed penalty under Section 76, 77, 78, of the Act along with penalty of Rule 15 of Cenvat Credit Rules, without mentioning as to how there was a deliberate defiance of law with intention to evade the payment of service tax. It was also submitted that the adjudicating authority has erred in imposing penalty under both the Sections 77 and 78, which is not permissible under the law for the period after to 10/05/2008 when the law itself was amended. (v) That the ld. adjudicating authority fail to appreciate that the appellant was entitled for waiver to penalty in terms of Section 80 of the Act. (vi) The appellant has relied upon the various laws which is mentioned as under; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide of the impugned order by allowing the appeal. 7. However, Ld. DR on behalf of the Revenue submits that this is a clear cut case of non payment of service tax by the appellant even after their realisation from the recipient. The fact about the non payment of service tax has been accepted by Shri A K Sharma, Proprietor of the appellant in their statement recorded under Section 14 of the Central Excise Act read with provisions of Section 83 of Finance Act. In fact, the appellant themselves has voluntarily agreed to pay the service tax not deposited to the exchequer. It was, therefore, prayed that there is no infirmity in the impugned order. 8. We have heard the parties and perused the appeal records. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We are not persuaded by the submissions made by the ld. Advocate and also in appeal memorandum that there is no case of suppression of fact with intention to evade the payment of duty. In fact, the appellant has himself accepted that they have committed mistake while not paying the service tax and by not following the procedure prescribed under the Act and Rules. The non-payment of service tax has come to light after the investigation conducted by the Department. Accordingly, we are of the opinion that the appellant has deliberately suppressed the relevant facts from the Department with sole intention to evade the payment of service tax and, therefore, the impugned order has correctly invoked. The provisions of 73 (1) of the Act. We do not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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