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2008 (5) TMI 120 - AT - Service TaxApplicant is working as Direct Marketing Agent of banks & receiving commission/incentive for every loan sanctioned by the bank in case of customers sponsored by the applicant - service rendered by the applicant is under Business Auxiliary Service - applicant failed to make out a prima facie for waiver of entire amount of penalty - applicant never disclosed their activities to the Department - deposit of tax before issue of Show Cause Notice cannot be a ground for waiver of penalty
Issues:
Application for waiver of pre-deposit of penalty under Sections 75A, 76, 77, and 78 of the Finance Act, 1994. Analysis: The Applicant, working as a 'Direct Marketing Agent' of banks, filed an application for waiver of a penalty of Rs. 1,42,259 imposed by the Adjudicating Authority for non-payment of tax detected by Central Excise Officers. The Commissioner (Appeals) upheld the penalty, stating the applicant did not disclose their activities to the Department and that pre-deposit of tax before the Show Cause Notice does not warrant penalty waiver. The Member (J) found no grounds for invoking the penalty under Section 78 of the Act. However, regarding penalties under Sections 75A, 76, and 77, the submission of the Applicant's Advocate would be considered during the appeal hearing. As the Applicant failed to establish a prima facie case for the waiver of the entire penalty amount, they were directed to deposit Rs. 30,000 within six weeks. Upon this deposit, the pre-deposit of the remaining penalty was waived until the appeal's disposal. The judgment emphasized that the deposit of tax before the issuance of the Show Cause Notice does not automatically warrant a waiver of penalty. The decision was made to balance the interests of the Applicant and the Revenue, ensuring compliance while providing an opportunity for the appeal process to proceed without undue financial burden. The Applicant was given a deadline for compliance, highlighting the importance of timely adherence to the Tribunal's orders.
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