TMI Blog2010 (8) TMI 198X X X X Extracts X X X X X X X X Extracts X X X X ..... be produced - no dispute that in the books of accounts and other financial records, all the transactions had been disclosed and those records had been produced - no justification for imposition of penalty under Section 78 - Appeal is dismissed - ST/571 & 454/2009-SM - 915-916/2010-SM(BR)(PB) - Dated:- 12-8-2010 - Shri Rakesh Kumar, Member (T) REPRESENTED BY : Shri Vikrant Kakria, Advocate, for the Appellant. Shri S.K. Bhaskar, DR, for the Respondent. [Order]. - The facts leading to these two appeals - Appeal No. ST/571/09-SM filed by M/s. Ess Ess Engineering (hereinafter referred to as the Appellant) and Appeal No. ST/454/09-SM filed by the Revenue are, in brief, as under : 1.1 The Appellant are registered w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubject to ceiling of Rs. 5,57,285/- was imposed under Section 76 of the Act. On appeal to Commissioner (Appeals), the Commissioner (Appeals) while upholding the service tax demand alongwith interest and also the imposition of penalty under Section 78, set aside the penalty under Section 76. The Department has come in appeal against the part of the Commissioner (Appeals)' s order setting aside the penalty under Section 76 and M/s. Ess Ess Engineering have filed an appeal against the Commissioner (Appeals)'s order upholding the penalty under Section 78. 2. Heard both the sides. 2.1 Shri Vikrant Kakria, Advocate, learned Counsel representing M/s. Ess Ess Engineering pleaded that the appellant had service tax registration, since 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... service tax alongwith interest had been paid prior to issue of show cause notice, in accordance with judgment of the Hon'ble Delhi High Court in the case of K.P. Pouches v. UOI reported in 2008 (228) E.L.T. 31, the original adjudicating authority should have given an option to the appellant in accordance with the provisions of first proviso to Section 78 of the Finance Act to pay reduced penalty within the stipulated period, but since no such option was given, the appellant cannot be deprived of the benefit of reduced penalty in accordance with the first proviso to Section 78. 2.2 Shri S.K. Bhaskar, the learned DR, pleaded that this is a case of not disclosing the full value of taxable service with intent to evade the service tax; th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heir clients with intention to evade the service tax. However, the appellant's contention is that in addition to erection, commissioning and installation, they were also, undertaking the work relating to fabrication and dismantling, on which they were not paying any service tax as according to them, service tax was not payable on charges for fabrication and dismantling. On going through the records, I find substance in this contention of the appellant. In view of this, I am of the view that short payment was mainly due to the appellant's understanding that they are not liable to pay service tax on the fabrication and dismantling charges. In view of this so far as penalty under Section 76 is concerned, I am of the view that there is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce the expression - Supression in proviso to Section 11 A(1) is accompanied by very strong words such as fraud or collusion , it has to be construed strictly and mere omission to give correct information is not suppression of facts unless it was deliberate act to evade the payment of duty and that suppression means failure to disclose full information with intent to evade payment of duty. The view that the word suppression gets its color from the words fraud and collusion preceding the same, is in accordance with the well established principle of interpretation of statutes - Noscitur - a sociis, according to which when two or more words susceptible of analogous meaning are coupled together, they take, as it were, their color fro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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