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TMI Blog2024 (10) TMI 1403X X X X Extracts X X X X X X X X Extracts X X X X ..... e even before the adjudication has been undertaken we do not find any justification for not having considered extending the benefit of Section 80 of the Finance Act, 1994 and waiving of all the penalties imposable on the appellant. We do not find any merits in the impugned order to the extent it is in relation to the penalties imposed on the appellant. This is a fit case where penalties imposable under Section 77 and 78 should have been waived in terms of provisions of Section 80 of the Finance Act, 1994. Appeal partly allowed to the extent of setting aside the penalties imposed on the appellant. - HON BLE MR. P. K. CHOUDHARY, MEMBER ( JUDICIAL ) And HON BLE MR. SANJIV SRIVASTAVA , MEMBER ( TECHNICAL ) Shri Atul Gupta , Advocate Ms Aayushi Srivastava , Advocate for the Appellant Shri Santosh Kumar , Authorised Representative for the Respondent ORDER SANJIV SRIVASTAVA : This appeal is directed against Order-in-Appeal No.84/ST/ALLD/2012 dated 24/04/2012 passed by Commissioner (Appeals) Customs, Central Excise Service Tax, Allahabad. By the impugned order, Commissioner (Appeals) has upheld the Order-in-Original No. 25/ST/2011 dated 18.11.2011, wherein following has been held : - ORD ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 69 of the Act/ rule 4 of the Rules. 3. Penalty should not be imposed upon them under Section 77 of the Act for violation of Section 70 read with rule 7 of the Rules, in case of each default. 4. Penalty should not be imposed upon them under section 76 of the Act for violation Section 68 of the Act read with Rule 6 of the Rules. 5. Penalty should not be imposed upon them under Section 78 of the Act. 2.4 This show cause notice was adjudicated as per the Order-in-Original referred in para 1 above. Aggrieved appellant filed appeal before Commissioner (Appeals), which has been dismissed as per the impugned order. 2.5 Hence this appeal. 3.1 We have heard Shri Atul Gupta learned Counsel appearing for the appellant and Shri Santosh Kumar learned Authorised Representative appearing for the revenue. 4.1 We have considered the impugned orders along with the submissions made in appeal and during the course of argument. 4.2 Interestingly, appellant in the present case even before the Original Authority also did not contested anything in the show cause notice except for certain computations. Relevant paragraphs of the order of Original Authority are reproduced bellow:- The party submitted defen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The order in original only shows non application of the mind by the adjudicating authority. It seems that adjudicating authority has recorded all the finding in the matter just to justify imposition of penalty. 4.4 In the impugned order, First Appellate Authority has observed as follows:- 5. I have gone through the facts of the case and averments made by the appellants. I find that the appellants during personal hearing have contested the imposition of penalty only. The appellants in their written submission filed during personal hearing, have submitted as under Appellant has deposited entire demand of service tax raised by the department (Rs. 4,57,364/-) and interest will be deposited by the appellants in due course of time. The appellants in support of their contention, have furnished a copy of Bank Challan dated 13.07.2011 and copy of Form ST-2 issued on 01.02.2011, along with their written submission. The appellants in their written submission have prayed to set aside the penalty of Rs. 10,000/- and Rs. 4,57,364/- under Section 77 and 78 of the Act 6. I find that the department has alleged providing of taxable services by the appellants during the period 2005-06 to 2009-10 wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence to penalty imposed under Section 77 and 78 of the Act, I find that the adjudicating authority has observed that the appellants did not contest the show cause notice on merits and disputed only on the quantification aspect. This fact has been admitted by the appellants at Para 2.5 on Page 8 of their appeal as under 2.5. Further we submitted the written submissions filed at the time of hearing before the adjudicating authority, it was reiterated that Appellant does not want to contest the SČN on merit, In addition to above, the appellants being engaged in providing taxable services since 2005-06 whereas obtained service tax registration on 01.02.2011 i.e. after 5 years of providing taxable services, non filling of statutory returns is manifest from the records. The appellants obtained registration only on persuasion of the department and not on their own. I find that the adjudicating authority, on page-6 of impugned order, on the issue of penalty, has observed and held as under As regards imposition of penalty under Section 77 of the said Act for failure to comply with the statutory provisions of the Service Tax Act and Rules made there under. I find that the party has fail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f material information to the department, as evident from the fact of not obtaining service tax registration in due time as well as non-filling of statutory returns, attract statutory provisions justifying imposition of penalty. These facts manifest appellant's intention to evade payment of service tax as, if the department had not detected continuous non-payment of tax, the evasion would have gone on unchecked Contravention of statutory provision is evident and manifest from records and therefore the order of adjudicating authority to impose penalty, cannot be faulted. There is nothing on record to indicate and prove that there existed reasonable cause for failure to entitle the appellants to get the benefit of Section 80 of the Finance Act, 1994 as claimed by them 10. In view of aforesaid observations, I find that the adjudicating authority has correctly confirmed the demand of service tax and interest and imposed penalty. Substantial relief was given by the adjudicating authority. Therefore, the same cannot be faulted in view of above observations. I therefore, see no reason to interfere with this order and refuse to allow the appeal. Appeal is rejected. 4.5 Both the authori ..... X X X X Extracts X X X X X X X X Extracts X X X X
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