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TMI Blog2018 (7) TMI 1126X X X X Extracts X X X X X X X X Extracts X X X X ..... rvice tax because the service recipient refused to make payment towards service tax in spite of repeated demand - A penalty will ordinarily be imposed in cases where the party acts deliberately in defiance of law, or is guilty of contumacious or dishonest conduct or acts in a conscious disregard of its obligation, but not in cases where there is a technical or venal breach of the provisions of the Act or where the breach flows from a bonafide belief that the offender is not liable to act in the matter prescribed by the statute. The penalty is not imposable since the appellant had a reasonable cause which resulted in failure on the part of the appellant to pay the service tax in time, by invoking section 80, penalty is set aside - But sin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alty for late filing of ST3 returns and also under Section 78 for suppression of value of taxable service. The appellant was issued another show-cause notice dt. 17/06/2010 for the period April 2008 to September 2009. After following due process, both the show-cause notices were disposed of by the Additional Commissioner confirming the demand proposed in the show-cause notices and also imposed penalty under Sections 77 78. Aggrieved by the said order, appellant filed appeal before the Commissioner (Appeals) who reduced the penalty under Section 78 to the extent of ₹ 1,19,153/- as the said amount was paid before the issuance of adjudication order and confirmed the remaining penalty. Similarly in appeal No. ST/20809/2017, the Commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 67/- and second show-cause notice dt. 17/06/2010 for ₹ 6,94,202/- but before adjudication on 31/05/2011, appellant paid the entire amount of service tax and produced copies of payment challans and the appellate authority has failed to take into consideration this fact while imposing penalty under Section 78 of the Finance Act. In support of his submission that there is no suppression on his part and penalty is unwarranted in the facts and circumstances of the present case, he relied upon the following decisions:- i. Hindustan Steel ltd. [1978(2) ELT (J-159) (SC)] ii. Easland Combines [2003(152) ELT 39 (SC)] iii. Damnet Chemicals Pvt. Ltd. [2007(216) ELT 3 (SC)] iv. Rajasthan Spinning Weaving Mills [2009(238) ELT 3 (SC)] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty must be exercised judiciously. A penalty will ordinarily be imposed in cases where the party acts deliberately in defiance of law, or is guilty of contumacious or dishonest conduct or acts in a conscious disregard of its obligation, but not in cases where there is a technical or venal breach of the provisions of the Act or where the breach flows from a bonafide belief that the offender is not liable to act in the matter prescribed by the statute. Similarly the Supreme Court has held in the case of Easland Combines as under:- 29.It is settled law that for invoking the extended period of limitation duty should not have been paid, short levied or short paid or erroneously refunded because of either fraud, collusion, wilful mis-statement ..... X X X X Extracts X X X X X X X X Extracts X X X X
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