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TMI Blog2016 (12) TMI 162X X X X Extracts X X X X X X X X Extracts X X X X ..... , to invoke the proviso to section 73(1) of Finance of Act, 1994. Therefore, the non-imposition of penalty in the circumstances of the specific finding that the pre-requisites for imposition of penalty under section 78 do not exist is tenable. Appeal dismissed - decided against the revenue. - APPEAL NO.ST/179/2011 - ORDER NO.A/93162-93163/16/STB - Dated:- 14-10-2016 - Shri Ramesh Nair, Member (Judicial) Versus Shri C J Mathew, Member (Technical) Shri Vikram K. Kaushik, Asstt. Commissioner (AR) for the appellant Shri Bharat Raichandani, Advocate for the respondent Per: C J Mathew: Impugned order-in-original no. PI/Commr/ST/12/2010 dated 16th December 2010 of Commissioner of Central Excise Pune which confirmed tax dem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pertaining to rendering of services and collection of taxes was available with the assessee. Noting the various submissions made by the respondent, the impugned order has restricted the penalty to section 76 and, that too, for a limited amount. The adjudication Commissioner notes in the impugned order 12.2 This is a fact that the assessee has collected the service tax but did not pay the service tax in full in the government account which is not disputed by the assessee. According to the assessee there is no malafide intention to evade service tax. However, whether malafide intention was present or not has to be gathered from the circumstances involved in the instant case. Firstly, the assessee did not suppress the tax collected and he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not disputed by the assessee. Therefore, imposing penalty under Section 78 is ruled out. The next question is that whether the assessee can also be absolved from the liability of penalty under Section 76 by giving protection under Section 80 of the Act? The answer is 'no', in as much as that he has failed to pay the dues on time. However, taking the circumstantial evidence, a lenient view may be taken in imposing penalty under Section 76. However, as accepted by the assessee, interest on the delayed payment is liable to be paid. 5. As elaborate reasons have been adduced, we find ourselves unable to disagree with the findings thereof. The respondent discharged his tax liability before the issue of impugned order. Whether the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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