9911796707
TMI Blog2011 (5) TMI 487X X X X Extracts X X X X X X X X Extracts X X X X ..... - ST/318/2009 - - - Dated:- 24-5-2011 - Shri P.G. Chacko, J. Shri Guljarilal Sharma, representative for the appellant Shri Manish Mohan, Authorized Representative (SDR) for the respondent This appeal filed by the assessee is directed against the demand of service tax of Rs. 46,024/- and education cess of Rs. 921/- totaling to Rs. 46,945/- as also against equal amount of penalty. 2. I have examined the records and heard both the sides. It appears from the records that the appellant had provided 'maintenance or repair service' to M/s. Manikgarh Cement during the period from September, 2005 to September, 2006 and had also collected service tax from the service recipient. Though they were registered with the department ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In the present appeal also, the assessee stands by the reconciliation statement and submit that no amount over and above Rs. 25,935/- is due from them to the Revenue. It is also contended that penalties are liable to be waived under Section 80 of the Finance Act, 1994 in the absence of intention to evade payment of service tax. 4. One Shri Guljarilal Sharma appears as authorised representative of the appellant and reiterates the grounds of this appeal. I have also heard the learned SDR. It appears from the records that the amount of Rs. 25,417/- and another amount of Rs. 518/- were paid by the assessee towards service tax and education cess respectively for the period from April, 2005 to September, 2006. A copy of the relevant challan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ason stated by them in the present appeal is that they had no intention to evade payment of service tax. Whether the appellant did or did not have any such intention has to be discerned from their conduct. If, upon mindful consideration of all the materials available on record, it is found that any amount of service tax / education cess collected from the service recipient was unlawfully retained by the appellant without being paid to the exchequer, intention to evade payment of service tax to that extent can justifiably be read into their conduct. But any finding in this regard has to be recorded after careful consideration of the submissions of the party, whether documentary or oral. 5. In the aforesaid circumstances, I set aside the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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