TMI Blog2015 (10) TMI 228X X X X Extracts X X X X X X X X Extracts X X X X ..... posed under Section 78. It is also a fact that the respondent have themselves suo motu deposited the service tax amount. The respondent also declared part of the taxable value in their ST-3 returns. The show cause notice was issued within the normal period of one year. Taking into consideration all these facts I am of the considered view that the penalty under Section 78 was correctly set aside - Decided against Revenue. - APPEAL NO: ST/487/2011 - Final Order No. A/310/2015-WZB/SMB - Dated:- 30-1-2015 - Shri Ramesh Nair, Member (Judicial), J. For the Petitioner : Shri B. Kumar Iyer, Superintendent (AR) For the Respondent : None ORDER The appeal is directed against Order-in-Appeal No: MI/MV/129/2011 dated 10/03/2011 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eir service-recipients. He submits that after collection of the service tax amount from the service-recipient and non-payment of the same to the government exchequer is clearly with a mala fide intention which attracts penalty under Section 78. He submits that the respondent also delayed in filing the ST-3 returns. Taking all these into consideration, the respondent had a clear intention to evade payment of service tax. 4. None represented the respondent despite notice. 5. I have carefully considered the submissions made by the learned AR and perused the records. In the present case, the demand of service tax and payment thereof, interest and penalty under Sections 76 and 77 are not the subject matter of the appeal. The Revenue is onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nancial difficulties. It is evident that the tax so collected from the customers has been diverted elsewhere. Such actions invite strict penalties. Non filing of returns has also resulted in invocation of Section 77. The adjudicating authority has therefore correctly imposed the penalties under both the Sections. 6. However the penalty under Section 78 is not called for. The appellants have themselves declared the tax liability to the department and hence the provisions of fraud or misdeclaration do not get attracted. The penalty imposed under Section 78 is accordingly set aside. 7. The impugned order is modified to the above extent and appeal filed by M/s Tirupati Travel Network Pvt. Ltd partially allowed. 6. From the above f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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