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TMI Blog2015 (9) TMI 162X X X X Extracts X X X X X X X X Extracts X X X X ..... to Rs. 500/- imposed under Section 77. Revenue has filed this appeal for restoration of penalty under Section 78 and against reduction of penalty under section 77. 2. Shri. A.B. Kulgod, Ld. Asstt. Commissioner (A.R.) appearing on behalf of the Revenue submits that respondent have charged and recovered service tax from M/s. Cadbury India Ltd and have not deposited the service tax at the relevant time therefore they have defaulted the government therefore the penalty under Section 78 should not have been dropped and the penalty under Section 77 should not have been reduced from 20,000/- to Rs. 500/-. 3. On the other hand, Shri. Sadashiv Hawaldar, Ld. Counsel for the respondent submits that respondent had no malafide intention to evade servi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e present Revenue's appeal is only for imposition of penalty under Section 78 and restoration of the penalty of Rs. 20,000/- imposed by the original authority which was reduced by the Commissioner (Appeals) to Rs. 500/-. From the entire proceedings, I observed that appellant have been making submission before the adjudicating authority and before the Commissioner (Appeals) that they did not have any intension to evade service tax as they have been making cash payment to their consultant, who was assigned the job for computing the service tax and depositing in the bank and also filing the return periodically. However, consultant has not deposited cash given to him as service tax in the bank and consultant defrauded the respondent, when t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not made party in the FIR filed against the consultant and it is the consultant's fault, the charges of fraud or collusion or willful mis-statement, or suppression of facts with intent to evade payment of duty do not stand against the appellants. Accordingly the appellants are not liable to any penalty under Section 78 of the Act. Further, in view of the said facts an extremely lenient view is called for while imposing the penalty under Section 77 of the Act for not filing the returns as the appellants had entrusted the said job to the consultant who was found to be involved in a fraud and there is no evidence contrary to the appellant's claim or their collusion with the consultant. From the above findings of the Ld. Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X
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