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TMI Blog2012 (6) TMI 554X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. This appeal is filed against order-in-appeal No.50/2010/COMMR(A)/RAJ, dt. 19.02.10. 2. Heard both sides and perused the records. 3. The issue in this appeal is regarding the setting aside of penalty under Section 78 of the Finance Act, 1994 imposed by the adjudicating authority and upheld by the first appellate authority. 4. The facts are in much in dispute. The appellant is a distributor of SIM cards of Vodafone Essar Gujarat Ltd. and were given commission on the sale on such products from their principal. The allegation is appellant had not discharged the service tax liability on the said SIM cards during the period April 2003 to September 2007. On being pointed out by the lower authorities that the appellant is liable to d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant that activity which has been undertaken by him would not get covered under the service tax liability, as during the relevant period Tribunal in the following judgments has held that such an activity will not amount to rendering of services. 1. South East Corporation - 2007 (8) STR 405 (Tri. - Bang.) 2. Pink City Communications - 2008 (10) STR 575 (Tri. - Del.) 3. R Venkataramanan - 2009 (13) STR 187 (Tri. - Chennai) Ld. departmental representative on the other hand would submit that provisions of Section 73(3) will not be applicable in this case as provisions of Section 73(4) are attracted wherein, demand has been made by invoking the extended period. As regards the bonafide belief, it is his submission that the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IM cards has held that it will amount to rendering of services. In my considered view, appellant could have entertained a bonafide belief that there is no liability for services rendered during the relevant period. 10. In view of the foregoing, in my considered opinion, benefit of Section 80 of the Finance Act, 1944 can be extended to the appellant in this case. Invoking the discretion given under provisions of Section 80, I find that the appellant has given a justifiable reason for setting aside the penalty imposed under Section 78 of the Finance Act, 1994. 11. The impugned order to the extent is challenged before me for the imposition of penalty under Section 78 to the extent appeal is allowed. Dictated and pronounced in the C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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