TMI Blog2010 (9) TMI 270X X X X Extracts X X X X X X X X Extracts X X X X ..... TED BY : Shri Darshan M. Parikh, SSC, for the Appellant. [Order per : Harsha Devani, J. (Oral)]. - In this appeal under Section 35G of the Central Excise Act, 1944 the appellant-revenue has challenged order dated 21- 10-2009 [2010 (18) S.T.R. 206 (Tribunal)] made by the Customs, Excise and Service Tax Appellate Tribunal (the Tribunal) proposing the following two questions : (i) Whether the penalty under Section 76 Section 78 of the Finance Act, 1994 can be dropped without invoking and/or fulfilling the requirements under Section 80 of the Finance Act, 1994? (ii) Whether the Tribunal, in law was entitled to come to a conclusion regarding the unawareness regarding tax liability/bona fide on the face of the fact th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 000/- and suppressed the said fact with intention to evade payment of service tax to submit that considering the said fact, the Tribunal was not justified in setting aside penalties levied under Sections 76 and 78 of the Act. 4. As can be seen from the impugned order of the Tribunal, on merits, the Tribunal has held against the assessee and has confirmed the demand of service tax. However, insofar as the question of levy of penalties under Sections 76 and 78 of the Act is concerned, the Tribunal, upon appreciation of evidence on record, was of the view that the assessee was under a bona fide belief that the service rendered by the assessee was not covered by the definition of "manpower recruitment or supply agency" as defined under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or Section 78, no penalty shall be imposable on the assessee for any failure referred to in the said provisions, if the assessee proves that there was reasonable cause for the said failure. Considering the provisions of Section 80 of the Act, which opens with the non-obstante clause, once the Tribunal after appreciating the evidence on record has recorded a finding that the assessee was under the bona fide belief that the service in question was not covered under the definition of "manpower recruitment or supply agency" as defined under Section 65(68) of the Act, it is apparent that the assessee had proved that there was reasonable cause for the failure referred to in Sections 76 and 78 of the Act and as such the provisions of Section 80 of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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