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TMI Blog2012 (6) TMI 553X X X X Extracts X X X X X X X X Extracts X X X X ..... ion to evade service tax - Appellants have paid the service tax along with interest though the same appears to be time barred. Provisions of Section 80 invoked and penalty under Section 76 set aside - Appeal is allowed by setting aside the penalty under Section 76 of the Finance Act. - ST/30/2011 - 1112/11 - Dated:- 29-9-2011 - M Veeraiyan, J. For Appellant: Shri M V Raman, Adv. For R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he order of the original authority dated 29.03.10. The Commissioner (Appeals) vide his order dated 13.10.10 modified the order of the original authority by holding that short payment was only to the tune of Rs. 1,33,949/- along with the interest thereon. He set aside the penalty under Section 78 totally and reduced the penalty imposed under Section 77 from Rs.5000/- to Rs.1000/-. However, he uphel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the provision of Section 78 in the absence of intention to evade service tax. Therefore, she seeks waiver of penalty imposed under Section 76 invoking the provisions of Section 80 of the Act. 3.2 She relies on the following decisions:- a) 2008 (9) S.T.R. 479 (Tri.-Ahmd.) Ahmedabad Education Society Vs. CCE, Ahmedabad b) 2009 (240) ELT 302 (Tri.-Chen.) Sakthi Industries Vs. CCE, Chenn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st. As there was a delay in payment of service tax, penalty under Section 76 was imposable. Further, Section 76 77 are complementary to each other. 5. I have carefully considered the submissions from both sides and perused the case records. It is noticed that the original authority found short levy in respect of four years. The Commissioner (Appeals), however, found that there was excess payme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paid the service tax along with interest though the same appears to be time barred, I deem it appropriate to invoke the provisions of Section 80 and set aside the penalty under Section 76 sustained by the Commissioner (A). Since, there is no prayer to set aside the penalty imposed under Section 77, I do not pass any order regarding the penalty sustained under Section 77. 6. The appeal is allowe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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