2018 (9) TMI 314 – CESTAT MUMBAI – TMI – Waiver of penalty u/s 76 and 78 – case of Revenue is that Commissioner (Appeals) has appropriated the Service Tax and interest paid by the assessee, but has failed to appreciate the fact that it was only on the basis of observation of Audit that non-payment of Service Tax came to light – Held that:- The respondent did not pay the Service Tax even after the decision of Hon'ble High Court of Bombay in the case of Indian National Ship Owners' Association [2009 (3) TMI 29 – BOMBAY HIGH COURT], and it was only when the Audit pointed out in July, 2012, the respondent paid the Service Tax – invocation of Section 76 is justified.
–
Penalty u/s 76 justified – appeal allowed in part. – Appeal No. ST/86956
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
that had Audit not detected the same, respondent would have gone scot free. In these circumstances, penalty under Section 78 should been confirmed. He pointed out that Section 80 has been invoked to set aside penalty imposed under Section 76 of the Finance Act, 1994. He argued that there has been doubt on part of the respondent to pay Service Tax on reverse charge basis. He pointed out that period of demand is from 2006 to 2011. He pointed out that after the decision of Hon'ble High Court of Bombay in the case of Indian National Ship Owners' Association – 2009 (14) STR 289 (Bom), the matter had become very clear that the respondent is required to pay Service Tax. In these circumstances, the respondent's failure to pay Service Ta
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
vailed the CENVAT Credit of the Service Tax paid by them and therefore, there could not have been any intention to evade payment of duty and therefore, invocation of Section 78 of the Finance Act, 1994 has rightly been set aside by the Commissioner. 4.1 However, I find that after the decision of Hon ble High Court of Bombay in the case of Indian National Ship Owners' Association (supra), liability to pay Service Tax is crystal clear w.e.f. date of judgment i.e. 23.3.2009. The respondent, however, did not pay the Service Tax even after the decision of Hon'ble High Court of Bombay and it was only when the Audit pointed out in July, 2012, the respondent paid the Service Tax. In these circumstances, invocation of Section 76 is justified
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =