TMI Blog2013 (11) TMI 401X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant could not show that he could not pay the tax on account of bona fide mistakes or under the impression that tax was not payable due to interpretation – thus they could not show that there existed reasonable cause. Commissioner (Appeals) has not quantified the penalty to be paid - He has also not considered Appellant's claims as to whether the appellant was eligible to the benefit of the provisions of Section 73(3) of the Act on the ground that they paid a substantial amount of service tax alongwith interest before issue of show cause notice - order of the lower authorities set aside and the case remitted back to the adjudicating authority to decide the case afresh of the Appellant. - Service Tax Appeal No.519/2011 - Final Order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the outset, the Ld. Advocate appearing for the appellant has submitted that as regards delay in filing the Return they have paid the penalty. It is however the contention that adjudicating authority waived the penalty under Section 76 of the Act, by exercising the powers vested in him under Section 80 of the said Act by appreciating that the delay in payment was due to financial crunch and that the same was before adjudication. Accordingly Commissioner( Appeals) cannot invoke his jurisdiction and impose penalty for the first time. Ld.Advocate placed his reliance on the judgement of the Hon'ble High Court of Karnataka in case of Commr . of Service Tax, Bangalore Vs. Motor World-2012 (27) STR 225 (Karnataka) and in the case of Commr . of Cen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ort of their claims that the discretion conferred on the adjudicating authority under Section 80 of the Act cannot be reviewed by the Commissioner( Appeals). I however find that the facts involved in the present Appeal is not same as in case of the judgements cited by the Appellant. On the other hand Ld.Commissioner (Appeals) has placed reliance on the case of Shyana Construction, (supra) wherein the Tribunal held that delay of 187 days in filing the return and delayed payment of service tax ranging from 194 to 286 days was explained by the appellant due to his frequent visits on account of his mother's illness and that after return the tax could not be paid on account of financial difficulty, tribunal held the benefit of the 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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