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TMI Blog2009 (1) TMI 62X X X X Extracts X X X X X X X X Extracts X X X X ..... akesh Kumar, Member (Technical) Shri S.Gautam, Authorised Departmental Representative (DR), for the Appellant. Shri Ram Kumar Agarwal, Adv. for the Respondent. [Order per : Rakesh Kumar, Member (Technical)] - This is an appeal filed by the Revenue against order-in-appeal No.319/ST/Appl./KNP/08 dt.9.7.08 passed by Commissioner(Appeals), Kanpur by which the Commissioner (Appeals) set aside the service tax demand against the respondent and penalty imposed on him vide order-in-original dt. 31.1.08 passed by Asstt. Commissioner of Central Excise, Agra. The facts of this case, in brief, giving rise to this appeal by the Revenue are that the respondent have service tax registration dt.16.9.97 under the category of tour operator ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /- alongwith interest and besides this, imposed penalty of 1,13,969/- under Section 76 of Finance Act,1994 and another penalty of same amount under Section 78 of the Finance Act. The Commissioner (Appeals) set aside the Asstt. Commissioner's order on the ground that the demand is time barred and that there was absolutely no suppression of any fact or information on the part of the Respondent. It is against this order of the Commissioner (Appeals) that this appeal has been filed by the Revenue. 2. Heard both the sides. 2.1 Shri S.Gautam, Ld. Sr. Departmental Representative assailed impugned order reiterating the grounds of appeal and prayed for restoration of the order-in-original passed by the Asstt. Commissioner. He emphasize ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r that the above documents had been asked for, that these documents had been produced and Deptt. had examined the same in the course of scrutiny of ST-3 returns; that the Departmental Officers at the time of scrutiny of the returns had accepted non-payment of service tax on the cost of ticket, monument fees etc. reimbursed by the Principal Tour Operators; that in view of this, there is no suppression of any fact or information on the part of the respondent and SCN dt.10.3.06 seeking recovery of allegedly short paid service tax from Oct'2000 to April'03 period is time barred and that taking all these factors into consideration, the Commissioner(Appeals) had rightly set aside the Asstt. Commissioner's order. The respondent at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en produced by the respondent for scrutiny their ST.3 returns, it would not be correct to accuse the respondent of willful statement, suppression of facts etc. I also find that the Commissioner (Appeals). conclusion that there was no willful statement, suppression of fact etc. in this case is based on Apex Court judgement in the case of Anand Nishikawa Co. vs. CCE, reported in 2005 (188) ELT.149 (SC), Cosmic Dye Chemical vs. CCE reported in 1995 (75) ELT.721(SC) and CCE vs HMM Ltd. reported in 1995 (76) ELT. 497 where it was held by the Apex Court that mere failure to give some information does not amount to willful misdeclaration and there must be some positive act from the side of the Assessee to final willful suppression. 4. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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