TMI Blog2012 (11) TMI 651X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee was eligible for credit of service tax if the same had been paid by them - their claim for the revenue neutrality and consequently absence of intention to evade service tax is acceptable. Therefore, there is no justification for imposition of any penalty under Section 78 at all. Therefore, the party's appeal challenging the penalty under Section 78 has to succeed. As it is a clear cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and proposing imposition of penalties. Original authority vide order dated 30.9.2009 upheld the demand of Rs.2,66,924/- and also appropriated the amount of service tax paid by the appellant and also an amount of Rs.86,651/- paid towards interest. He imposed a penalty of Rs.66,731/- under Section 78 on the ground that service tax and interest were paid before the order was issued. 1.3 It is noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmits that the assessee has received the input services from foreign based commission agent and ought to have paid the service tax. They not only failed to pay the service tax but even after commencement of the investigation they did not cooperate and that they paid the service tax and interest only on 5.10.2009. She fairly submits that there appears to be a mistake in the date of the order-in-ori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rds. The original authority in his order did not impose any penalty under Section 76 and imposed penalty of only 25% under Section 78 apparently on the ground that the service tax and the interest stand paid before issuance of the order-in-original. The assessee challenged the imposition of penalty of 25% before Commissioner (Appeals) and the department sought for enhancement of the penalty equal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rality and consequently absence of intention to evade service tax is acceptable. Therefore, there is no justification for imposition of any penalty under Section 78 at all. Therefore, the party's appeal challenging the penalty under Section 78 has to succeed. As it is a clear case of revenue neutrality and a case where intention to evade service tax is absent, the penalty under Section 76 which is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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