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2009 (9) TMI 389 - AT - Service TaxTransport agency’s services- This is an appeal by Revenue against order-in-appeal No. 14-ST/LKO./2008, dated 30-1-2009 passed by Commissioner (Appeals). The respondent paid certain amount of service tax only for the month of January and February, 2005 and thereafter challenged this levy by filing a writ petition before Hon’ble Allahabad High Court. Hon’ble Allahabad High Court granted stay on collection of service tax in March, 2005 but Hon’ble High Court dismissed the writ petition on 12-8-2005. The respondent however, still did not start the payment of service tax and paid the balance amount of service tax for January, 2005 to March, 2006 period only on 31-3-2006 and, thereafter, they paid interest on this service tax sometime in July, 2007. The Deptt., however, issued a SCN on 24-10-2007 for imposition of penalty on the appellant under section 76 for non-payment of service tax during January, 2005-March, 2006 period by the due date. The Asstt. Commissioner vide order-in-original dated 29-4-2008 imposed the penalty under section 76 which is at the rate of Rs. 200 per day subject to the ceiling of the non-paid tax. The respondent filed an appeal before the Commissioner (Appeals) who vide order-in-appeal dated 30-10-2009, set aside the penalty on the ground that the respondent is eligible for waiver of penalty in terms of the provisions of section 80 of the Finance Act, 1994. Held that- there was no reason for non-payment of service tax by due date, I hold that the respondent would be liable for penalty for period from 5-10-2005. However, looking to the circumstances of the case, I hold that penalty of Rs. 100 per day for the period from 6-10-2005 onwards till the date of its payment will meet the ends of justice. In view of the above discussion, the impugned order is set aside and the order-in-original is restored with the above mentioned modification. The revenue’s appeal is partly allowed.
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