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TMI Blog2019 (1) TMI 1121X X X X Extracts X X X X X X X X Extracts X X X X ..... or 'willful misstatement' or 'suppression of facts'. These words should be read in conjunction with 'the intent to evade payment of service tax'. However, there is no finding rendered by the Adjudicating Authority stating that there was either fraud or collusion or willful misstatement or suppression of facts or contravention of the provisions of Chapter V with an intent to evade payment of service tax. Therefore, in the strict sense of the matter, without a finding rendered by the Adjudicating Authority that there was an intention to evade payment of service tax, under normal circumstances, penalty could not be imposed. However, the facts of the case have not fully convinced us to waive the entire penalty, as th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ally when the entire service tax along with interest were paid before filing of reply to the show cause notice by the appellant and the order of the Adjudicating Authority ? ii. Whether, in the facts and circumstances of the case, penalty under Section 78 of the Finance Act, 1994 is imposable as there is no evasion or suppression with intention to evade service tax liability? And iii. Whether the Tribunal is justified in holding that the statutory benefit of reduced penalty at 25%, provided under Section 78 of the Finance Act, be as if it was pleaded by the consultant before the Tribunal? 3. We have heard Mr.K.Jayachandran, learned counsel for the appellant and Mr.N.Senthilkumar, learned Junior Standing Counsel appearing on b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Adjudicating Authority is not right in making an observation that the assessee had collected money from their clients, but not remitted to the Government. In other words, in the absence of any specific material available with the Department to come to such a conclusion, the Adjudicating Authority could not have rendered such a finding. The Tribunal, after considering the facts of the case, thought fit to reduce penalty to 25%. Not being satisfied with that, the assessee is before this Court. 7. Section 78 of the Finance Act, 1994 deals with Penalty for failure to pay service tax for reasons of fraud, etc. Sub-Section (1) of Section 78 states that where any service tax has not been levied or paid or has been short levied or short-paid o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ax within the time permitted under the Statute. Hence, we are of the considered view that this can be taken as a mitigating factor to reduce penalty, but not to waive the entire penalty. 10. Thus, considering the peculiar facts and circumstances of the case, we modify the order passed by the Tribunal to the extent of reducing penalty to 10% of the penalty imposed under Section 78 of the Finance Act, 1994 vide the Order-in-Original dated 19.12.2008. The assessee is directed to comply with the above direction within one week from the date of receipt of a copy of this judgment and to facilitate the same, the attachment of the assessee/appellant's bank account shall be lifted. It is made clear that this order shall not be treated as a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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