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TMI Blog2016 (7) TMI 471X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Respondent herein. - Penalyt was rightly waived by the Commissioner (Appeal) - Decided against the revenue. - ST/41850/2015 - FINAL ORDER No. 40850/2016 - Dated:- 26-5-2016 - Shri P. K. Choudhary, Judicial Member Shri L. Paneerselvam, AC (AR), for the Appellant Ms. Radhika Chandrasekar, Adv., for the Respondent ORDER Revenue is in appeal against the impugned order on the only ground that the penalty imposed under Section 78 vide OIO has been set aside by the Ld. Commissioner (Appeals). 2. The Ld. AR Shri L. Paneerselvam, AC, submits that the respondent assesse had received services from foreign firms who do not have any office in India under Business Auxiliary Services . He further submitted that tho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it party they should pay tax along with 1% penalty till the date of payment or maximum penalty upto 25% of tax. If this is agreed by the appellant, there will be no show cause notice issued by; the department. He also relied on the judgment of the Apex Court in the case of UOI Vs. Dharmendra Textiles Processors - 2008 (231) ELT 3 (S.C). 3. The Ld. Counsel appearing on behalf of the respondent assesse Ms. Radhika Chandrasekar, Advocate, reiterated the findings of the Ld. Commissioner (Appeals) and submitted copies of the citations which were already relied upon before the Ld. Commissioner (Appeals) such as:- 1. CCE ST, LTU, Bangalore Vs. Adecco Flexion Workforce Solutions Ltd. 2012 (26) STR 3 2. M/s. Atwood Oceanics Pacific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... partment is that the respondent had filed an appeal only to set aside the penalty imposed under Section 78 of the Act 1994 and not against the order confirming the demand by invoking the extended period of time. During the hearing, the Counsel for the Respondent submitted that this allegation was factually erroneous. The Counsel for the Respondent undertook to file the grounds of appeal as adduced before the Commissioner (appeals) and the same was accordingly filed. A reading of Ground No. 4 onwards reveals that in fact the Respondent herein had contended that extended period is not invokable in the facts of the present case. Penalty under section 78 can be imposed only when there is a mis-declaration coupled with suppression of facts. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eceived in India) Rules 2006 in order to tax under the category of business auxiliary service , the service must have been received in India is the belief which the Respondent had harboured and it is also a fact that the departmental officials had, in fact, conducted audits which were followed with queries and also reply made by the Respondent herein. When the department officials are aware of the activities of the Respondent herein, the allegation of suppression is baseless. The Karnataka High Court in the case of C.C.E. S.T. LTU, Bangalore Vs Adecco Flexione Workforce Solutions Ltd. reported in 2012 (26) STR 3 (Kar) had held in para 3 as under: 3. Unfortunately the assessing authority as well as the appellate authority seem to th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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