TMI Blog2014 (9) TMI 782X X X X Extracts X X X X X X X X Extracts X X X X ..... ded by the Ld. AR, there is absence of mala fide in the present case. In such a situation, even otherwise penalty under Section 78 ibid cannot be imposed in as much as penalty under that section requires means rea - Decided in favour of assessee. - ST/444/2009-CU[DB] - FINAL ORDER NO. 53496/2014 - Dated:- 28-8-2014 - Mr. G. Raghuram and Mr. R.K. Singh, JJ. For the Appellant : Shri A.K. Batra Varun Gaba, Advocate For the Respondent : Ms. Swhitra Sharma, Commr (AR) JUDGEMENT PER: R.K. Singh The appellants have filed this appeal against Order-in-Original No. Commissioner/RPR/94/2008 dated 30.10.2008 in terms of which service tax demand of ₹ 62,46,844/- was confirmed along with interest and the mandatory p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... totality they have deposited service tax amounting to ₹ 76,24,017 in relation to the impugned demand. (ii) Show Cause Notice has included the amount received by them prior to 16.06.2005, the date on which the construction of complex service was introduced. Thus the service tax amounting to ₹ 48,701/- on the amount of ₹ 14,46,843/- received prior to 16.06.2005 is not leviable. The details of the deposit challan show the total deposited service tax amounting to ₹ 76,24,017/- which is claimed to be more than the total impugned demand and the interest leviable thereon and they can satisfy the jurisdictional authorities in the regard. They said that they were not contesting the levy but only stressing that they had n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entire amount of service tax but no evidence in this regard has been produced so far. Thus, in absence of any such evidence on record, I am left with better option than to hold that the outstanding service tax of ₹ 21,48,390/- has not been paid as yet. They had also assured payment of interest within a week from the date of hearing (25.09.2008) but till date they have not produced any evidence in this regard. I, therefore, cannot grant them immunity from payment of penalty. The case of non-payment of service tax by the reason of suppression of facts with intent to evade payment of tax has been proved against the noticee for which penalty under Section 78 of the Act is imposable on them. They had also failed to file periodical returns ..... X X X X Extracts X X X X X X X X Extracts X X X X
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