TMI Blog2010 (2) TMI 220X X X X Extracts X X X X X X X X Extracts X X X X ..... ourse of investigation, the preventive officers concluding the activity of refining as job work and asked the appellant to pay service tax under the category of Business Auxiliary Services. Held that- the appellant has paid the Central Excise duty on the manufacturing activity taken over by them it cannot be termed that there was any intention of the appellant to evade any payment of service tax. With these observations, I do not find any merit in the impugned order, same is set aside and the appeal is allowed. - ST/110/09 - - - Dated:- 10-2-2010 - For approval and signature: Hon'ble Shri Ashok Jindal, Member (Judicial) Appearance: Shri D.R. Gadekar, Consultant, for Appellants Shri N. A. Sayyad, JDR Authorized Rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 76, 77 78 of the Finance Act. The appellant pleaded before the revisional authority that their activity amounts to manufacture and they have paid excess duty on the refined oil and as such they were no required to service tax, accordingly they are not liable to pay any penalty. But the adjudicating authority did not consider the same and imposed the various penalties on the appellants. Aggrieved from the same appellant is before me. 3. The learned Advocate for the appellant submits that they are not covered under BAs as the activity taken by them is manufacture but they paid service tax demand they do not want to go on litigation, He also submitted that otherwise the appellant is paying Central Excise duty on their activities bein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt has not asking for any consequential relief in pursuing to the adjudication order but wants to consider the merits for levy of penalties. Hence the reliance placed by the DR is not acceptable. The submissions made by the Advocate have convincing force. Moreover although the appellant has not challenged the adjudication order but in the penalty proceedings the appellant has right to prove his bonafide that the appellant has not intention to evade any service tax. 7. The learned Advocate's submission that the Commissioner did not give them the benefit of Section 80 of the Finance Act, while deciding the case. In these circumstances, where the appellant has paid the Central Excise duty on the manufacturing activity taken over by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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