TMI Blog2011 (5) TMI 32X X X X Extracts X X X X X X X X Extracts X X X X ..... financial records to the audit for inspection - The allegation against assessee is that they were not disclosing full value of the taxable service provided to their clients with the intention to evade the service tax - The Tribunal has recorded a finding of fact that the assessee did not have the requisite mens rea to evade payment of service tax - The assessee had duly paid the service tax with i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has rightly allowed the party's appeal regarding waiving penalty under section 78 of the Finance Act, 1994? Whether the grounds that for imposition of penalty under section 78 some positive evidence of deliberate mis-declaration of value of taxable service with intent to evade the service tax, other than mere failure to declare the full value of taxable service in ST-3 returns must be procure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g finding has been recorded in the impugned order : 3. I have carefully considered the submissions from both the sides and perused the records. I find that short payment was detected in course of audit of records of the Appellant Company when they submitted their financial records to the audit for inspection. It is not in dispute that the Appellant were registered with the Department and they ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g charges. In view of this so far as penalty under section 76 is concerned, I am of the view that there is a case for invoking section 80. 4. As regards penalty under section 78 is concerned, the same is imposable in a case where service tax has not been levied or paid or has been short levied or short paid or erroneously refunded, by reason of fraud; or collusion; or wilful misstatement; or su ..... X X X X Extracts X X X X X X X X Extracts X X X X
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