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TMI Blog2011 (1) TMI 865X X X X Extracts X X X X X X X X Extracts X X X X ..... y under Section 78 also which was sustained by the Commissioner (Appeals) - Appeal is allowed by way of remand to original authority to consider the issue of excess payment of service tax. - ST/625/2010 - 206/2011 - Dated:- 31-1-2011 - M Veeraiyan, J. For Appellant : Shri Vijay Anand, CA For Respondent : Ms Indira Sisupal, JDR Per: M Veeraiyan: This is an appeal against the order of the Commissioner (Appeals) No. 128/2010 (MST) dated 30.6.2010. 2. Heard both sides. 3. The appellants are proprietary concern in the small scale sector. They were issued a show-cause notice alleging that the activities undertaken by the assessees are liable to Service Tax and that they have not taken Service Tax registration and not paid Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cess payment was raised before the Commissioner (Appeals) and duly noted by him, he has not given any relief in this regard. He fairly submits that the appellants have not contested the demand before the original authority. He also submits that they have not contested the demand before the Commissioner (Appeals) except to the extent of benefit available upto Rs.4 lakhs during the year 2005-06. The Commissioner (Appeals) though found it a fit case for invoking the provisions of Section 80, has not given full relief inasmuch as he has sustained equal amount as penalty under Section 78. He seeks setting aside the penalty imposed under Section 78 and also seeks reduction in demand of Service Tax by extending the concession available to the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Finance Act. The appellants are basically seeking full waiver of penalties in terms of Section 80 of the Finance Act. Since the Commissioner (Appeals) has found that it is a fit case for invoking Section 80 of the Finance Act and since the conduct of the assessee in paying excess Service Tax and interest shows lack of knowledge of service Tax law, I deem it appropriate to extend full benefit under Section 80 of the Finance Act, 1994 and set aside the penalty under Section 78 also which was sustained by the Commissioner (Appeals). However, the claim regarding excess payment of Service Tax and interest has not been raised before the original authority and to enable verification of this claim, the matter is remitted to the original authority. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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