TMI Blog2017 (3) TMI 1158X X X X Extracts X X X X X X X X Extracts X X X X ..... f harboured by the appellant in not discharging the service tax during the relevant period - fit case for invocation of Section 80 of the FA, 1994 - appeal allowed - decided in favor of appellant. - Service Tax Appeal No.35 and 36 of 2009-SM - A/10645-10646/2017 - Dated:- 9-3-2017 - Dr. D.M. Misra, Member (Judicial) Shri S.J. Vyas, Advocate, for the appellant Shri A. Mishra, A.R. for the Respondent-Revenue ORDER Per Dr. D.M. Misra These two appeals are filed by the appellants against the Order-in-Appeal No.138 to 139/2008 (STC)/ID/Commr.(A)/Ahd dated 11.11.08 passed by the Commissioner (Appeals), Central Excise, Ahmedabad. 2. Briefly stated the facts of the case are that the appellants were engaged in provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... took registration and started discharging the service tax thereafter. It is his contention that the Department should not have issued any show cause notice as the amount had already been paid by them. In support of their contention that they had been advised about non-applicability of the service tax, the ld. Advocate has placed a an opinon/certificate issued by their Chartered Accountant, Shri Sunil K.Mehta. Further, he submits that in reply to the show cause notice dated 27.8.2004 they have requested for invoking of Section 80 of Finance Act 1994 and also repeated the said plea before the ld. Commissioner (Appeals), but not considered. It is his contention that the Hon ble Karnataka High Court in the case of C.S.T., Bangalore vs. Motor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance Act, 1994. 6. I find that principle for inviting Section 80 in a given case has been considered by the Hon'ble Karnataka High Court in the case of Motor World (supra) where it has been laid down at Para 33 and 34, which reads as under: 33. In the light of the foregoing discussion and for the reasons stated above, we answer the substantial questions of law as under :- (1) The imposition of penalty under the Act is not automatic. The ingredients mentioned in the Section should exist. In respect of Sections 76, 77 and 78 of the Act, not only the ingredients of those Sections should exist, but also there should be absence of reasonable cause for the said failure. (2) Sections 76 and 78 are mutually exclusive. If p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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