9911796707
TMI Blog2010 (6) TMI 131X X X X Extracts X X X X X X X X Extracts X X X X ..... for waiver of penalty can be considered only for the amount paid by them prior to the issuance of Show Cause Notice. In the light of the various decisions, penalty was not imposable under Section 78 in the absence of any fraud, suppression on the part of the assessee. The penalty imposed on the appellants is set aside and the appeal is allowed. X X X X Extracts X X X X X X X X Extracts X X X X ..... otice. The appellants had paid service tax of Rs 1,90,356/- (Rupees One lakh ninety thousand three hundred and fifty six only) before the issue of show cause notice. The impugned order sustained the order of the original authority. In the appeal filed before the Tribunal, it is submitted that demand for short payment under the category 'Manpower Recruitment Agency' was not sustainable as their clients were mostly based abroad and the charges received were exempted from service tax. The activity of conducting tours by hiring tourist vehicles was exempted up to 01.03.2000. The short payment and non-payment of demand confirmed against them had occurred on account of their bona fide belief that they were not liable to pay the impugned tax. Duri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be imposed in cases where ingredients of Section 11AC were present. There was no discretion to reduce mandatory penalty for the reason that duty was paid prior to issue of show cause notice etc. In the Aakriti Cable Network Vs. CCE, Jaipur - 2009 (15) STR 338 (Tri.-Del.), the Tribunal held that penalty could be validly imposed under Section 76 & 78 of the Act, if the transactions involved ingredients for imposing penalty prescribed under those sections. I find that the case laws and circular relied on by the learned JDR are not relevant to the facts of the case on hand. 5. I have perused the case records and the rival submissions. In reply to show cause notice, the appellants submitted that they had not deliberately contravened the statu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oing the services of manpower recruitment to the prospective employers only. b) We did not take service tax registration for the tour operator service as we were not holding any Tourist Permit and were under the bonafide belief and impression that persons holding tourist permit alone are covered by tour operator service. c) Once we realize that we are liable to pay service tax on tour operation service and employment/recruitment services provided to candidates, we have paid the service tax in spite of financial constraints faced by us. d) Further we wish to mention here that we have not collected any amount as service tax from the clients (for tour operations) as well as from the candidates (for providing employment) and the service tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce we had fully discharged our liability and dues and since the non-payment was due to the inexperience with the law & its procedures and on bonafide belief as explained above, we humbly request your good self to kindly invoke your powers under section 80 of the Finance Act, 1994 and spare us from the interest and penalties proposed in the notice and also drop further penal proceedings, if any. 6. The Commissioner imposed penalty under Section 78 limiting the same to the amount paid after issue of show cause notice. 7. I find that the impugned order does not render any finding on the appellants being guilty of any of the misconduct enumerated under Section 78 of the Act. The following are his findings: 'I have gone through the case reco ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
