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TMI Blog2018 (10) TMI 1374X X X X Extracts X X X X X X X X Extracts X X X X ..... 11 after a delay of 32 days. There appears to no malafide intention on the part of assessee to evade payment of service tax and that ST-3 returns had also been filed without delay - ingredients of proviso to Section 73 (1) are not present in this case and in consequence there is no scope for imposition of penalty under Section 78 ibid. Penalty u/s 76 - Held that:- The reason of financial crunch given by the appellant should be given some credence, particularly in view of the mitigating factor that it is not a case of absolute non-discharge of tax liability but delayed payment of tax, that too with interest paid thereon - There is reasonable cause for failure to discharge the tax liability and hence we hold that imposition of penalty u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e up for hearing, on behalf of the appellant, Ms. D.S. Vipula, Ld. Advocate made oral and written submissions which can be summarized as under : i) Appellant has discharged the entire amount of service tax foro the disputed period even before the issue of SCN. Section 76 envisages payment of penalty on failure to discharge service tax. However, in the instant case thre is no such failure but only mere delay in payment which does not attractpenalty under Section 76. ii) Reliance is placed on the decision of Karnataka High Court in the case of CCE Vs Adecco Flexion Work Force Solutions Ltd. 2012 (26) STR 3, wherein it was held that if the tax and interest are paid prior to the SCN, there cannot be any penalty. 3. On the other hand, L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has confirmed the penalty under Section 76. However, from narration in para-4 of the order, we find that during the personal hearing on 13.12.2011, the appellants had submitted that delay in payment of service tax was purely due to financial crunch but have paid the service tax with a delay of one month and also paid the interest liability thereon. 5. We find merit in the appeal. The adjudicating authority has held that ingredients of fraud, suppression, misstatement etc. are not present on the part of the appellant against which conclusion there is no appeal filed by the department. This being so, the reason of financial crunch given by the appellant should be given some credence, particularly in view of the mitigating factor that it is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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