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TMI Blog2016 (12) TMI 543X X X X Extracts X X X X X X X X Extracts X X X X ..... ith intent to evade payment of duty. In the present case, the appellant having disclosed the liability of service tax in returns filed before the Income Tax authorities, no suppression can be alleged against the appellant - I hold that the imposition of penalty is unsustainable - appeal allowed - decided in favor of appellant-assessee. - ST/512/2012 - A/31136/2016 - Dated:- 28-10-2016 - Ms. Sulekha Beevi, C.S., Member (Judicial) Shri Rupesh Sharma, Advocate for the appellant. Shri Guna Ranjan, Superintendent(AR) for the respondent. ORDER The appeal is filed by the appellant challenging the order of the Commissioner(Appeals) who imposed equal amount of penalty under Section 78 of the Finance Act, 1994. 2. The brief f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls) vide the order impugned herein imposed equal amount of penalty to the tune of ₹ 15,43,016/ Being aggrieved, the appellant/assessee is now before the Tribunal. 3. On behalf of the appellant, the learned counsel Shri Rupesh Sharma referred to the provision contained in Section 73(3) of the Finance Act and argued that the appellant had paid part of the demand prior to the issuance of the show-cause notice and that the show-cause notice ought to have been issued only for balance amount of ₹ 5,13,320/-. He also submitted that the adjudicating authority having invoked Section 80 of the Finance Act by applying discretion provided under the said Section, the Commissioner(Appeals) ought not to have imposed penalty. He relied upo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id the entire amount of ₹ 15,43,016/- (Rs.10,29, 696/- before issuance of the Show cause notice and ₹ 5, 13,320/- after issuance of the show cause notice) towards service tax payable and an amount of ₹ 2,13,231/- towards the interest payable on the above service tax amount. This shows that the service provider though failed to pay the service tax on the due dates, has discharged the same along with interest. Further the service provider requested for waiver of the penalties under Section 80 of the Finance Act, 1994 and quoted certain case laws in support of his request. In the case of Vista Infotech Vs. Commissioner of Service Tax (2010) 17 STR 343, the Hon'ble Tribunal held that the appellant has not discharged servic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yse the situation whether default of payment of service tax would attract the situation to impose penalty. The Tribunal in the case of Vee aar Secure (supra) has observed that when the original authority has given a reasoning for waiver of penalty by exercising the powers under Section 80 of Finance Act, 1994 and without proper reason the same cannot be enhanced or reopened by an higher authority. In the present case, there is nothing brought out from the facts to establish that there was a malafide intention or deliberate intention to evade service tax. This being so, the adjudicating authority has rightly exercised the option under Section 80 of the Finance Act and therefore the imposition of equal amount of penalty by the Commissioner(Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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