9911796707
TMI Blog2009 (5) TMI 374X X X X Extracts X X X X X X X X Extracts X X X X ..... d. - ST/151 OF 2006 - 719 OF 2009 - Dated:- 11-5-2009 - M.V. RAVINDRAN, JUDICIAL MEMBER AND T.K. JAYARAMAN, TECHNICAL MEMBER Ms. Joy Kumari Chander for the Appellant. M.S. Srinivasa for the Respondent. ORDER T.K. Jayaraman, Technical Member - The revenue has filed this appeal against the Order-in-Appeal No. 45/2006, Central Excise, dated 31-3-2006, passed by the Commissioner of Central Excise (Appeals-I), Bangalore. 2. Heard both the sides in the matter. 3. The Respondents were rendering services of Multi-System Operator (MSO). They were also doing 'Internet Advertisement Service'. The departmental officers visited the Respondents' unit and pointed out that for the period from 1-4-2003 to 30-4-2004, the Respondents h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ected in connection with providing of internet service. This demand has also been confirmed. There was actually no utilization of any input service credit. Hence there was no confirmation of demand on this aspect. With regard to the levy of penalty, the Original authority has given a clear cut finding that there was no mala fide intention to evade tax. Consequently he has taken a lenient view and did not impose penalty under section 76 of the Finance Act, 1994. However, penalty was imposed under section 78 of the Act. The Commissioner (Appeals) in the impugned order set aside the penalty under section 78 and upheld the remaining part of the Order-in-Original. The revenue is aggrieved over the impugned order of the Commissioner (Appeals) on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it prescribed under section 73 of the Act. The decision of the Commissioner (Appeals-I) in setting aside the penalty under section 78 of the Act is in contradiction with his own decision of upholding the confirmation of demand of Service Tax and also contrary to the provisions of law. Penalty under section 78 of the Act is mandatory, when the extended period is invoked under the provisions of section 73 of the Act for recovery of Service Tax. The finding of Commissioner (Appeals-I) that the imposition of penalty under section 78 of the Act is not warranted is not legally sustainable and the OIA suffers from inherent contradiction. Thus, the impugned OIA is not legal or proper and is liable to be set aside. 4. We have gone through the reco ..... X X X X Extracts X X X X X X X X Extracts X X X X
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