TMI Blog2009 (5) TMI 347X X X X Extracts X X X X X X X X Extracts X X X X ..... ) and he has used his discretion to set aside the penalty. Moreover we find that the respondent is a cooperative society consisting of ex-servicemen. It is a fact that they had not paid the service tax on a bona fide belief and also the said tax amount was not collected from M/s. ONGC. Once M/s. ONGC cleared the amount, they paid it. So we agree with the learned Commissioner (Appeals) that there was no wilful intention on their part to evade service tax. There is no infirmity in the order of the Commissioner. Therefore, we uphold it and reject the Revenue’s appeal - ST/236/2007 - 604/2009 - Dated:- 6-5-2009 - . S/Shri T.K. Jayaraman, Member (T) and M.V. Ravindran, Member (J) Shri K.S. Srinivasa, JDR, for the Appellant. Shri M. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... soning in Paras 9 and 10 of the impugned order which we are reproducing herein below: "As far as imposition of penalty on the Appellants is concerned I agree with the Appellants' contentions that the imposition of penalty may be set aside as there was no wilful intention on their part either to evade payment of service tax or to defer its payment. The appellants are registered as M/s. Ex-Servicemen Re-Settlement Coordinate Society Ltd., with the Deputy Registrar of cooperative society, Rajahmundry. I also agree with the Appellants contention that they are under legitimate understanding that their services are not liable for Service Tax. They have also contended that they have been regularly discharging their service tax liability on the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hey were not liable to pay and only after a lapse of two and half years from the date of issue of show cause notice dated 2-12-99 they discharged the service tax liability. Therefore, according to the Revenue this is not a case of lack of knowledge and understanding but a case of wilful avoidance of tax basing on an incorrect argument. They discharged their liability only when M/s. ONGC paid them the amount. It is urged that the legal provision is that the service provider has to discharge his liability on his own without waiting for the realization of the sum from the service receiver. In the present case, the respondents belief that they could not pay the tax because there was delay in payment of the same by M/s. ONGC is not legally susta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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