9911796707
TMI Blog2015 (6) TMI 440X X X X Extracts X X X X X X X X Extracts X X X X ..... by Revenue against the same Order-in-Appeal. 2. The facts, briefly stated, are as under : The appellants were authorised dealers of M/s. Mahindra & Mahindra Ltd. and M/s. Hero Honda Motors Ltd. and registered under the category of Business Auxiliary Service. It was found on scrutiny of their records that during the years 2003-04, 2004-05 and 2005-06 they had received commission from banks as well as insurance companies and also received some payments from M/s. Mahindra & Mahindra Ltd. and M/s. Hero Honda Motors Ltd. It was alleged in the Show Cause Notice dated 28-5-2007 that the said amounts were liable to Service Tax under Business Auxiliary Service and extended period was invocable due to wilful mis-statement/suppression of facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal against the said Order-in-Appeal on the ground that the appellants did not deposit the impugned Service Tax on their own and did so only after the evasion was detected by the Department and that the penalty under Section 76 doesn't require mens rea and therefore the benefit of Section 80 should not have been extended to the appellant with regard to penalties under Section 76 and 78 of the Finance Act, 1994. 3. In their appeal the appellants have contended that the commission received by them from banks and insurance companies was not classifiable under Business Auxiliary Service as they had only provided table space to their (i.e. banks' and insurance companies') representatives and that there was no suppression or wilful mis-st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there was no mens rea on the part of the appellants extending the benefit of Section 80 cannot be said to be illegal, perverse or even unreasonable. The Revenue also seems to be conceding the absence of mens rea when it is contended by them that mens rea is not a pre-requisite for penalty under Section 76. It is pertinent to mention that the impugned order cannot be overruled merely because some other equivalent authority may have come to a different conclusion with regard to extending the benefit of Section 80 in the given circumstances. To set aside the impugned order, Revenue has to show that the said order is illegal, perverse or unreasonable with regard to extending the said benefit in the given circumstances. The Revenue has evidentl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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