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TMI Blog2010 (6) TMI 130X X X X Extracts X X X X X X X X Extracts X X X X ..... 80 of the act can be invoked the appellants were not guilty of fraud, suppression of fact or willful mis-statement with intent to evade payment of duty. The appeal is allowed. - ST/351/2008 - Final Order No. 964/2010 - Dated:- 4-6-2010 - Represented by:- Mr S. Srinath, Chartered Accountant, for the appellant Mr. U. Raja Ram, JDR, for the Revenue Coram: Hon'ble Mr. P. Karthikeyan, Member (Technical) Per P. Karthikeyan This is an appeal filed by M/s. Shapoorji Pallonji Company Ltd. seeking to vacate penalties imposed on them under Sections 76 and 78 of the Finance Act, 1994 (the Act). Facts of the case are that the appellants are registered with the Service Tax Department for providing 'Construction Service'. Duri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellants liable for penalty under Sections 76 and 78 of the Act. There is no finding of suppression of fact with intent to evade payment of duty by the assessee in the order of the original authority. Citing various case laws, it is submitted that the Commissioner could not have imposed penalties on the appellants in revision proceedings when the original authority had found the appellants not liable to any penalty and had waived the penalties exercising his discretion. 4. During hearing, learned Chartered Accountant representing the appellants reiterated the arguments taken in the appeal and relied on the judgment of the Karnataka High Court in the case of CCE, Bangalore-II Vs. Sunitha Shetty [2006 (3) STR 404 (Kar.)] and judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ority. The revisionary authority did not gather any fresh evidence of assessee's conduct. The appellants paid the tax found due from them along with applicable interest by 16.11.2005. A show cause notice basic to the proceedings was issued on 23.11.2005. As per 73(3) of the Act, where service tax has not been levied or has been short levied, the person chargeable with the service tax may pay the amount of such service tax on the basis of his own ascertainment or on the basis of tax ascertained by the Central Excise officer before service of notice on him and inform the Central Excise Officer of such payment in writing, who on receipt of such information shall not serve any notice under Section 73 (1) in respect of the amount so paid. 7. L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tc., as envisaged by Section 78 of the Act. The order-in-original dated 15.06.2005 (A-1) does not record any finding of fraud, mis-statement etc., which could have been the basis for acquiring jurisdiction to impose the penalty. Accordingly, the Assessing Authority exercised the power under Section 80 of the Act and decided not to impose any penalty under Section 78. There was no basis for the Revisional Authority-cum-Commissioner to acquire the jurisdiction to impose penalty. There is no evidence produced before the revisional authority or any other authority to prove fraud, collusion, misrepresentation etc. so as to attract the application of Section 78 of the Act. In our view, the Tribunal has rightly restored the order of the Assessing ..... X X X X Extracts X X X X X X X X Extracts X X X X
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