TMI Blog2009 (1) TMI 215X X X X Extracts X X X X X X X X Extracts X X X X ..... ame. Thereafter appellants paid the service tax even before the issue of show cause notice by the Department – Adjudicating authority confirmed the demand and imposed penalty - Held that since the penalty imposed are minimum no further relief can be given - ST/127/2008 - A/29/2009-WZB/AHD - Dated:- 6-1-2009 - Shri B.S.V. Murthy, Member (T). Shri V. Kansara, Advocate, for the Appellant. Dr. M.K. Rajak, SDR, for the Respondent. [Order].- The appellants are providing jeeps/cabs to ONGC, Ankleshwar on contract basis and the 'rend-a-cab service' became liable to service tax w.e.f. 1-4-2000. However, the appellants did not pay service tax up to February, 2002 since there was no provision in the contract between ONGC and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tention to evade payment of tax. He also cited the decision of the Tribunal in the case of M/s. Sri Venkateswara Cable Network [2008 (11) S.T.R. 512 (Tri.-Bang.)] to support his contention that where tax liability was discharged along with interest before issue of show cause notice, penalty is not imposable. Further, he also submitted that co-operative society cannot be considered to be a commercial concern in view of the decision of the Tribunal in the case of M/s. Sikar Ex-Serviceman Welfare Co-operative Society Ltd. [2006 (4) S.T.R. 213 (Tri.-Del.)]. 3. The ld. DR on the other hand submits that the fact remains that the appellants did not discharge the liability even though they were aware of the consequences of doing the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ociation was pursuing the matter with the Government and that is not the case here. Similarly, the issue is not whether the appellants are commercial concern or not. Therefore the judgment of the Tribunal in respect of the M/s. Sikar Ex-Serviceman Welfare Co-operative Society Ltd. also is of no help. I find myself in complete agreement with the observations of the Commissioner (Appeals) and therefore reproduce the same as under:- 5.3 As regards the issue at (ii) in para 5.1 above, the Appellants have requested for waiver of penalties imposed by the Adjudicating Authority in terms of Section 80 of the Finance Act, 1994 on the ground that there was delay in payment of service tax amounting to Rs.16,57,321/- for the period from 1-4-2000 to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 80 of the Finance Act, 1994. Service tax is payable by the 5th of the month following the calendar month in which the payment is received towards the value of taxable service and, therefore, the Appellants, who were receiving the said payments from ONGC, were liable to pay the tax irrespective of the fact that ONGC were not reimbursing the tax component and that the same was in dispute with them. The fact that the Appellants have paid the tax before issuance of show cause notice is also not sufficient ground for waiver of penalty under Section 76. The Appellants have also not made out a case of failure to pay tax on account of financial hardship. I, therefore, find that the reasons given by the Appellants are not sufficient for the purpose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, the ratio of the decision in the case of CCE, Bangalore-II v. Sunitha Shetty - 2004 (174) E.L.T. 313 (Kar.) is also not applicable to the present case as the facts and circumstances therein and the issues involved are quite different from those in the present case. 5. Before parting, I have to observe that the Original Adjudicating Authority the Asst. Commissioner has passed an order which is totally non-speaking and while confirming the demand in spite of the appellants' mentioning that they were regularly paying the service tax after 1-3-2000, did not bother even to verify before passing the order whether such was the fact. However, since the penalties imposed are the minimum as per the law, no further relief can be give ..... X X X X Extracts X X X X X X X X Extracts X X X X
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