TMI Blog2019 (10) TMI 172X X X X Extracts X X X X X X X X Extracts X X X X ..... for the earlier period was paid by the Appellant on his own. In this case the Appellant does not dispute the demand of service tax even after payment of tax before the issue of show cause notice as it is found that there is suppression of fact on the part of the Appellant. The penalty which has been imposed under Section 78 of the Act is only a consequence of the demand being confirmed on account of suppression of facts. Therefore, in the above facts there is no merit in this submission and would not give rise to any substantial question of law. The notice which was issued to the Appellant was on invoking the extended period of limitation and that has not been a subject of challenge before the Tribunal or before us - The Appellant doe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal was correct and justified in upholding the imposition of penalty and dismissing the appeal of the Appellant? 3. The Appellant is engaged in providing Rent-a-Cab Service . This service is a taxable service which falls under Section 65(91) read with section 65(105)(o) of the Act. During the period 2010-2011 to 2012-2013, the Appellant did not file the ST-3 returns nor paid service tax within the stipulated time under the Act. The Revenue by various letters called upon the Appellant to pay service tax and the interest thereon. However as the Appellant failed to respond, the proprietor was summoned and his statement was recorded and investigation commenced. During the course of investigation it was found that the Appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Respondent. It also records the fact that in some cases it was noticed that the Appellant had collected the service tax from the recipient of service but did not deposit the same with the Government exchequer as its statutory liability. In these circumstances, the Tribunal held that the defence of payment of service tax being prior to the issue of show cause notice would not be available to the Respondent as the amounts were deposited only on account of the investigation. Further Tribunal also records as a finding of fact that the Appellant has not been able to prove its bona-fides regarding non-payment of service tax within the stipulated time frame. In these circumstances the impugned order of the Tribunal upholds the view of the Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Appellant does not dispute that so far as demand is concerned the extended period of limitation is applicable. It is only in respect of penalty which is imposed under Section 78 of the Act that it is urged on behalf of the Appellant that no penalty should have been imposed thereunder. It is submitted that as the Appellant had not only paid service tax but had also paid the interest thereon prior to the issue of show cause notice. Therefore in these circumstances in terms of Section 73(3) of the Act, no show cause notice, much less penalty should be imposed. This submission completely ignores Section 73(4) of the Act which excludes application of Section 73(3) of the Act in case of suppression, mischief, etc. In this case the Appellant do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 80 of the Act has been made in the written submission. However, it is his case that the facts mentioned in the written submission that there was no intention to evade the penalty would itself amount to invoking of section 80 of the Act in this case. 9. We find that the view taken by the authorities under the Act has found that the conduct of the Appellant is soiled with suppression of facts. This finding of fact is a possible view. Nothing has been shown to us which indicate non consideration of the above submission. Thus the imposition of penalty under section 78 of the Act cannot be faulted. The question of invoking of Section 80 of the Act in such cases would not arise because Section 78 of the Act itself supposes lack of b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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