TMI Blog2012 (8) TMI 716X X X X Extracts X X X X X X X X Extracts X X X X ..... ng of the penalty 80 of the Act is justified - appeal is dismissed. - 20 of 2009 - - - Dated:- 14-7-2011 - V.G. Sabhahit and Ravi Malimath, JJ. REPRESENTED BY : Shri N.R. Bhaskar, Advocate, for the Appellant. Smt. Rukmini Menon, Advocate, for the Respondent. [Judgment per : V.G. Sabhahit, J.] This appeal is filed by the Revenue being aggrieved by the order passed by the Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench, Bangalore, dated 11-6-2008 [2008 (12) S.T.R. 273 (Tri. - Bang.)] wherein the appeal filed by the Revenue challenging the order passed by the Commissioner of Service Tax and the First appellate authority dated 23-3-2007 before the Commissioner of Central Excise (Appeals) by the res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nterest from the period from 10-9-2004 to 28-2-2005 and subsequently for the period 1-7-2004 to 9-9-2004 though they had not collected the service tax. They had also filed the S.T.3 returns and that the delay was due to pending clarifications and there was no intention to evade payment of Service Tax. The Assistant Commissioner rejected the cause shown and imposed service tax confirming the demand of service tax and passed the following order : 1. I confirm the demand of Service Tax of ₹ 1,39,952/- (Rupees One lakh thirty nine thousand nine hundred and fifty two only) under Section 73 of the Finance Act, 1994. 2. I appropriate the amount ₹ 1,39,952/- (Rupees One lakh thirty nine thousand nine hundred and fifty two only), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty of Revenue preferred an appeal before the CESTAT in Appeal No. S.T./286/2007 and the Tribunal dismissed the appeal by order dated 11-6-2008 holding that the waiver of penalty was justified. Being aggrieved by the said order this appeal is filed by the Revenue. The substantial questions of law that arises for determination in this appeal are as follows : (i) Whether the finding of the appellate authority waiving the imposition of penalty under Section 76 of the Act in exercise of the powers under Section 80 of the Act is justified? (ii) Whether the finding of the appellate authority is contrary to the provisions of Sections 76 and 78 of the Act? We have heard the learned counsel appearing for the appellate and the counsel a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w that there was delay in payment of service tax and it is not disputed that the service tax and the interest have been deposited belatedly but the penalty amount was not deposited. The explanation offered by the respondent is that there was no intention to avoid payment of service tax and infact for the period from September, 2004 February 2005 the service tax has been deduct and further in view of the information given by the NIIT of which the respondent is a franchise claiming that they have made out a ground claiming exemption the said explanation has been accepted by the appellate authority and confirmed by the appellate authority in exercise of the powers under Section 80 of the Act for waiver of penalty imposed under Section 76 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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