TMI Blog2019 (9) TMI 1519X X X X Extracts X X X X X X X X Extracts X X X X ..... 017 (7) TMI 603 - MADRAS HIGH COURT] . Following the ratio laid down by the Hon ble High Court, the penalty imposed is set aside - appeal allowed in part. - Service Tax Appeal Nos. 322 & 325 of 2010 - FINAL ORDER No.77070-77071/2019 - Dated:- 26-9-2019 - SHRI P. K. CHOUDHARY, MEMBER (JUDICIAL) AND SHRI C.J.MATHEWS, MEMBER (TECHNICAL) Shri Deepro Sen, Advocate for the Appellant (s) Shri T. Mondal, Authorized Representative for the Respondent(s) ORDER Since both the appeals have been filed against a common Order-in-Original No. 01/Commr/ST/Kol/2010-11 dated 29.04.2010, they are taken up together. Vide the impugned order, the Ld. Commissioner of Service Tax, Kolkata has confirmed the demand of Service Tax of ₹ 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 18.04.2006 is also sustainable. 5. We find that the Hon ble Bombay High Court in Indian National Shipowners Association (Supra) had held as under:- 17. Reliance is placed on the provisions of Rule 2(I)(d)(iv) quoted above for justifying the levy of service tax for the period from 16.08.2002. Perusal of the above quoted Rule 2(d)(iv) shows that by that provision a person liable for paying the service tax was defined to mean in relation to any taxable service provided by a person who is non-resident or is from outside India to a person receiving taxable service in India. Apart from the fact that this rule is contrary to the provisions of Section 68 and other provisions of the Act, under this provision the recipient of the service bec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on ble Supreme Court has clearly laid down that the liability of payment of service tax is on the person rendering the services and by making a provision in the Rules, the burden of tax cannot be shifted to the recipient of service and the Rule which brought about this situation has been declared by the Hon ble Supreme Court to be invalid. The law laid down by the Supreme Court in its judgment in Laghu Udyog (supra) is squarely applicable to Rule 2(1)(d)(iv), which is relied on in this case. It appears that the first time when the act was amended and Section 66A was inserted by Finance Act, 2006 w.e.f. 18.04.2006, the Respondents got the legal authority to levy service tax on the recipients of taxable service. Now, because of the enactment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Counsel limited the submissions to the point of penalty. It was submitted that the penalty is liable to be set aside inasmuch as the issue related to interpretation of law. It was further submitted that the issue was clarified much later vide Instruction F. No. 276/8/2009-CX.8A, dated 26.09.2011. It was submitted that the duty and interest were deposited on being pointed out by the department in 2007 whereas the Show Cause Notice was issued in February 2009. Therefore, this is a fit case for invocation of Section 80 of the Finance Act, 1994 and set aside the penalty imposed on the Appellant. Reliance in this regard was placed on the decision of the Hon ble Madras High Court in CCE, Salem VS. JSW Steels Limited 2017 (6) GSTL 397 (Mad.) wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id so, we are not to be understood, that merely because service tax was paid prior to Show Cause Notice, therefore, penalty ought to be waived. What is required to be looked at is, the cumulative set of facts obtaining in each case, and then, assessing as to whether non-payment of service tax was a conscious and/or deliberate act of wrong doing and/or deception. Our sense of the matter is that, it was not, and. Therefore, the conclusion reached by the Tribunal, in our view, is correct. 17. Thus, for the foregoing reasons, we are inclined to sustain the order of the Tribunal. The appeal of the Revenue will, consequently, have to be dismissed. We are in agreement of the ratio laid down by the Hon ble High Court and therefore set asi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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