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TMI Blog2018 (5) TMI 1518X X X X Extracts X X X X X X X X Extracts X X X X ..... the Finance Act, 1994 for non-filing of ST-3 returns within due date, which is reduced to Rs. 20,000/- but upheld the penalty under Section 78 of the Finance Act. 2. Briefly the facts of the present case are that the appellants are registered under the Service Tax provision under the category of works contract service, site preparation and clearance and construction services in respect of commercial or industrial buildings or civil structures. During the course of audit on the record of the appellant by the internal audit party of the Department, it was observed that although they have collected service tax but had not paid the same to the Government account on the taxable services rendered during the period 2008-2009. and 2009-2010 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -cause notice, the Department should not have issued the show-cause notice. He further submitted that though the appellant has collected the service tax but could not deposit the same on account of the financial difficulties faced by the appellant during the relevant time and as soon as the audit pointed out the non-payment, the appellant paid the same along with interest which has been appropriated in the impugned order. He further submitted that there was no intention to evade and the appellant has shown the service tax liability in the balance sheet of the company during the relevant period and he has also produced the copy of the balance sheet wherein the appellant has shown the liability of service tax for the period 2008-09 and 2009-1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of fact and the penalty under Section 78 should be imposed. In support of his submission, he relied upon the following submissions:- i. CCE, Mangalore Vs. K. Vijaya C. Rai [2011(21) STR 224 (Kar.)] ii, CCE Vs. Haryana Industrial Security Services [2011(21) STR 210 (P&H)] iii. Erecon Vs. CST, Ahmedabad [2016(41) STR 538 (Tri. Ahmd)] 7. After considering the submissions of both sides and perusal of the material on record and various decisions relied upon by both the parties, I find that the service tax along with interest has been paid by the appellant before the issue of show-cause notice. The only issue which remains to be decided by me is the penalty under Section 78. It is a fact that the appellant has collected the serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd[2016(335)ELT 203(S.C.)] held that option of 25% penalty must be given in the adjudication order. Considering above settled legal position and Board circular, the appellant is liable to get option of 25% penalty under Section 78. We therefore reduce penalty of Rs. 51,59,813/- to 25% of the same subject to condition that total amount of service tax, interest and 25% penalty stand paid within one month from the date of receipt of this order. Appeal is partly allowed in the above terms. Misc. application stands disposed of. 8. By following the ratio of the said decision, I uphold the penalty imposed under Section 78 but giving an option of penalty of 25% to the appellant if the same is paid within one month from the date of receipt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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