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TMI Blog2012 (7) TMI 257X X X X Extracts X X X X X X X X Extracts X X X X ..... bonaflde belief that their service was not taxable - Additional Commissioner did not show any reason why the appellant's appeal and grounds for invocation of section 80'could not be given any cognizance to – Held that:- They paid the tax and interest when non-applicability of the said notification was pointed out to them without going into any dispute. This bona fide conduct as also argument of the appellant showing sufficient and reasonable cause for the failure certainly call for invocation of I section 80 of the Act – Commr. (Appeals) has rightly invoked Section 80 of the Finance Act. X X X X Extracts X X X X X X X X Extracts X X X X ..... s is a fit case for invoking of Section 80 of the Finance Act,1994 and accordingly set aside the imposition of penalty under Section 78 of the Finance Act and allowed their appeal to that extent. Hence the Revenue is in appeal. 2. The Ld. A.R. for the Revenue has submitted that the Ld. Commissioner (Appeal) has erred in invoking Section 80 of the Finance Act. It is his submission that even though the amount was paid prior to issuance of show cause notice and interest during the course of adjudication proceeding, Penalty under Section 78 of the Finance Act, 1994 is imposable in view of the judgments of the Hon ble Supreme Court in the case of Dharmendra Textile Processors-2008(231) ELT 3 (S.C.) and Rajasthan Spinning & Weaving Mills-2009 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... para 4 of the impugned order as below: 4. I have carefully gone through the records of the case. Since the appellant has already deposited the tax and interest I consider it worthwhile to dispense with the condition of pre-deposit of penalty and proceed to pass Order-in-Appeal on merits of the case. According to Para-3.5 of the said notification- "However service tax will not be payable in cases where a bill has been raised on a Rent a Cab Scheme operator, by another rent-a-cab scheme operator who has sub-let the motor cab to the latter operator provided who pays service tax on the amount billed to his client for renting out the motor cab so obtained by him. " The Addl. Commr did not extend benefit of this notification to the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commr. (Appeals) has invoked Section 80 of the Finance Act only on the said grounds as mentioned by the Revenue. The Revenue has also availed the order of Ld.Commr. (Appeals) citing the ratio of Supreme Court in Dharmendra Textile & Rajasthan Shipping case. I find that the adjudicating authority has not followed the principle laid down by the Hon ble Supreme Court in Dharmendra Textile case by imposing equivalent penalty once presence of the ingredients of Section 78 of the Finance Act is recorded by him. In these circumstances I find that the Ld. Commr. (Appeals) has rightly invoked Section 80 of the Finance Act. Accordingly, the appeal filed by the Revenue is devoid of merit and hence the same is dismissed. Dictated and Pronounced in t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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