TMI Blog2015 (7) TMI 310X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 67 before the High Court and obtained injunction, it would be sufficient to establish that there is a prima facie case in favour of the Appellant. In such situation, there is no scope to doubt the bonafide of the Appellant. Hence, it is a fit case to invoke Section 80 of the Act, 1994 and no penal provision should be invoked. - Decided in favour of assessee. - Appeal No.ST/121/2007-DB, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the identical issue. We find that the appeal was dismissed for non-prosecution without going into the merits. In view of that, we recall the Order dt. 12.01.2015 and restore the appeal to its original number. With the consent of both the sides, we take up the appeal for hearing. 3. After hearing both the sides and on perusal of the records, we find that the learned Advocate on behalf of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on to the Appellant's factory found that the Appellant had received the amount against which they have not paid the tax. The Appellants were under a bonafide belief that they received the amount prior to insertion of Explanation 3 to Section 67 of the Act and therefore, no tax is leviable. But, at the instance of the officers on 04.01.2006, they have paid the entire amount of tax alongwith int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon'ble Madras High Court in the nature of a writ of declaration to declare the amendment to Section 65 (105) and Explanation 3 to Section 67 introduced by the Finance Act, 2005 to Finance Act, 1994 levying service tax on receipts even before services provided, as ultra vires. The Hon'ble Madras High Court by order dt.16.10.2006, granted Interim Injunction on the levy of tax. 6. The lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... favour of the Appellant. In such situation, there is no scope to doubt the bonafide of the Appellant. Hence, it is a fit case to invoke Section 80 of the Act, 1994 and no penal provision should be invoked. 8. In view of the above discussion, we modify the impugned order in so far as the penalties are set aside. The appeal is allowed in above terms. (Dictated Pronounced in Court) - - T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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