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TMI Blog2015 (11) TMI 524X X X X Extracts X X X X X X X X Extracts X X X X ..... od cannot be said that they have admitted the suppression of facts. The appellant time and again before lower authority and as well as before this Tribunal contesting the penalty only on ground that there is no suppression of fact with intent to evade payment of service tax. I am of the opinion that the appellant is having better conduct as compared to the assessees who never pay the service tax and contest service tax as well as penalties only for sake of litigate matter and evade payment of service tax. - since the appellant have paid service tax alongwith interest before issuance of show cause notice and the details were correctly declared in the books of accounts. I find that appellant has made out case for immunity in terms of 73(3) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... day after due date till the date of actual payment of outstanding amount of service tax under Section 76 of Finance Act, 1994. The penalty of ₹ 5,000/- was imposed under Section 77 and penalty of ₹ 48,702/- was also imposed under Section 78. Aggrieved by the said order-in-original, appellant filed appeal only in respect of penalties imposed on them. The Commissioner (Appeals) rejected the appeal and upheld the order-in-original, therefore aggrieved by the said order in appeal, appellant is before me. 3. None appeared on behalf of the appellant nor any adjournment request is on record. However, written submission was filed requesting to decide the matter on merit. In the said written submission he placed reliance on following ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon judgment of this Tribunal in case of K. Madhav Kamath Brother Co. Vs. Commr. of C. Ex., Mangalore [2015(38) S.T.R. 249 (Tri- Bang.)], wherein it was held that when the demand is for extended period and the same was not challenged, the appellant conceded suppression of facts with intent to evade payment of service tax, therefore penalty under Section 78 is rightly imposable. 5. I have carefully considered the submissions made by both sides and perused the record. 6. I find that the short payment of service tax amounting to ₹ 48,702/- was pointed out by the service tax department during audit of the appellants record such as balance sheet, profit and loss account and ST 3 return. The short payment is due the differences be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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