TMI Blog2014 (9) TMI 218X X X X Extracts X X X X X X X X Extracts X X X X ..... ut in the present case we have noticed from the records that the quantum of the amount contemplated in the notice is only 74,675/- In the interest of bringing a finality to the matter and in order not to burden the Tribunal by directing a fresh consideration in regard to a matter involving a small amount, we have considered it appropriate, by consent, to consider the issue as to whether the imposition of a penalty was warranted. - penalty waived - decided in favor of assessee. - Central Excise Appeal No. - 152 of 2014 - - - Dated:- 25-8-2014 - Hon'ble Dr. Dhananjaya Yeshwant Chandrachud, CJ And Hon'ble Dilip Gupta,JJ. For the Appellant : Punit Kumar Upadhyay For the Respondent : Ramesh Chandra Shukla ORDER The appeal under section 35-G of the Central Excise Act, 1944 read with section 83 of the Finance Act, 1994 arises from an order of the Customs, Excise and Service Tax Appellate Tribunal1 dated 12 March 2014. A notice to show cause was issued to the appellant on 29 September 2010 by the Assistant Commissioner, Central Excise and Service Tax, Mirzapur calling upon the appellant to explain why an amount by way of service tax of ₹ 74,675/- s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4,343/- from M/s Hindalco Industries Limited, Renukoot. The service receiver had paid to the appellant amounts on account of provident fund in respect of the manpower supplied. Service tax was not paid by the appellant on the provident fund component which had been received from Hindalco Industries Ltd. as the service receiver. The non payment of service tax on the aforesaid component of ₹ 74,675/- paid to the appellant between 2005-06 and 2009-10 was a subject matter of the show cause notice dated 29 September 2010. The Tribunal, in the case of Neelav Jaiswal (supra), had in a judgment dated 22 July 2013 held as follows: 6. Section 65(105)(k) enacts the relevant taxable service to mean any service provided or to be provided to any person, by a man-power recruitment or supply agency in relation to the recruitment or supply of man-power, temporarily or otherwise, in any manner. Section 65(68) of the Act defines 'man-power recruitment or supply agency' to mean any person engaged in providing any service, directly or indirectly, in any manner for recruitment or supply of manpower, temporarily or otherwise, to any other person. Section 67 of the Act dealing with va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntion with an intent to evade payment of service tax. Moreover, it has been submitted that under the first proviso to section 78, the amount of penalty is liable to be reduced to 25% of the service tax determined if the service tax together with interest is paid within thirty days from the communication of the order of the Central Excise Officer determining the service tax. In the present case, it has been submitted that the appellant had established its bona fides by not even waiting for an order of adjudication but had deposited the amount of service tax with interest on 9 June 2011, 7 September 2011, 21 September 2011 and 11 October 2011. Finally, it has been submitted that nearly two-hundred notices had been issued by the Division and Commissionerate at Allahabad which indicates that there was mass unawareness among the service providers in the area which was noted in an order of the Joint Commissioner (Adjudication), Central Excise, Allahabad dated 16 June 2011 (Annexure-12). On the other hand, the learned counsel appearing on behalf of the Revenue has supported the order of the Tribunal. At the relevant time, prior to the substitution of the provisions of section 78 by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... posable if the assessee proves that there was a reasonable cause for its failure. In response to the notice to show cause, the appellant had emphasised that there was no intent to evade payment of excise duty. Before the Tribunal in the grounds of appeal, the appellant stated that the amount towards provident fund was deducted by the appellant from the salary of the employees and an equal amount was contributed by it as the employer. The amount which was contributed by the employer was received from Hindalco Industries Ltd. and the appellant had deposited a cheque for the total provident fund contribution in the Employees' Provident Fund Account. The appellant stated that it had not retained any of the amount but had deposited it in the account of the concerned employees maintained with the Provident Fund Commissioner. The appellant further stated that it was under a bona fide belief that the amount which it had received from the recipient of the service in respect of the provident fund contribution of the employer was not subject to service tax. The notice to show cause which was issued to the appellant stated that the appellant was engaged in providing taxable service f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Excise, Bangalore AIR 1989 SC 2278. Moreover, the conduct of the appellant in paying the entire amount of service tax dues together with interest even before the order of adjudication was passed is a factor which must weigh in the balance. The fact that the service tax was deposited even before the order of adjudication was passed was taken note of by the Assistant Commissioner in the order dated 24 November 2011. In these circumstances, we are of the view that no case for the imposition of a penalty was made out. In the present case, the Tribunal in its impugned judgment and order decided the issue of taxability without entering into any specific finding in regard to whether the condition precedent for the imposition of a penalty had been established. We would have remanded the proceedings back to the Tribunal for a fresh consideration but in the present case we have noticed from the records that the quantum of the amount contemplated in the notice is only 74,675/-. In the interest of bringing a finality to the matter and in order not to burden the Tribunal by directing a fresh consideration in regard to a matter involving a small amount, we have considered it appropriate, ..... 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