9911796707
TMI Blog2008 (11) TMI 182X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, it was found that this is the amount received from custodian/contractors as compensation for not performing certain jobs which ultimately had been performed by the respondents. The Department took the view that this amount has to be treated as their receipt for providing the taxable service of cargo handling and is liable to service tax. Accordingly, the respondent deposited the service tax amounting to Rs. 43,187/- along with interest of Rs. 6,585/- on 6-3-06. However, subsequently the Department issued a show cause notice on 4-1-07 for confirming the demand of service tax (which had already been paid by them and also for imposition of penalty on them under Sections 76, 77 & 78). The Dy. Commissioner vide order-in-original dt. 9-1-08 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there was genuine reason on part of the respondent for non-payment of service tax on the amount of Rs. 4,23,393/- received by them from the contractor / custodian. He pleaded that this amount had not been received from the client to whom the Cargo Handling Service was provided but had been received from the contractors custodian, as compensation for not doing certain jobs which they were supposed to perform, as a result of which those jobs had to be performed by the respondent and for this reason, only this amount had not been declared in the returns and no service tax has been paid. As soon as the Department pointed out that service tax is to be paid on this amount, they paid the same. He also pointed out that in course of hearing before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... waiver of penalty in terms of the provisions of Section 80 of the Finance Act, 1994 should have been considered by the lower authority but there are no findings on this point in the impugned order. I agree that waiver of penalty cannot be granted just because the service tax had been paid prior to the issue of show cause notice. But if the non-payment of service tax was due to some bona fide reason on the part of the assessee and the assessee on being pointed out paid the service tax, the waiver of penalty under Section 76, 77 or 78 would be merited. But since the question as to whether in view of the facts of the case, waiver of penalty under Section 80 is warranted, has not been considered in the impugned order, the impugned order is set ..... X X X X Extracts X X X X X X X X Extracts X X X X
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