TMI Blog2016 (3) TMI 1192X X X X Extracts X X X X X X X X Extracts X X X X ..... ed:- 24-3-2016 - Sulekha Beevi C.S. (Judicial Member) For the Appellant : N. Naik, AR For the Respondent : V. A. A. Ravi Kumar ORDER Sulekha Beevi C.S. (Judicial Member) 1. The appeal is filed by revenue against the order passed by Commissioner (Appeals) which set aside the penalty imposed under Section 78 of Finance Act, 1994. 2. The respondent was engaged in providing Works Contract Service to M/s Jaya Jyothi Cements (P) Ltd. the respondent got registered under the service tax department on 09-07-2008. On information received that respondent is not discharging the service tax liability properly, on the payments received from M/s Jaya Jyothi Cements (P) Ltd, details were called for from M/s Jaya Jyothi Cements ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8377; 3,725.30. Therefore, the show cause notice issued is proper. That there being suppression of facts on the part of respondent by non-filing of returns, the waiver of penalty by Commissioner(Appeals) invoking Section 80 of Finance Act, 1994 is illegal. He pleaded that the appeal may be allowed. 6. Per Contra, the learned counsel Shri V.A.A.Ravi Kumar, appearing for the respondent explained the details of payment made by the respondent. The respondent paid ₹ 14,96,395/- and interest of ₹ 1,902/- by way of GAR-7 Challans on 26-11-2011, 16-11-2010, 05-01-2011, 25-01-2011 and 29-01-2011. Further, an amount of ₹ 3,29,982/- was paid by the Service Receiver (M/s Jaya Jyothi Cements (P)Ltd) on behalf of the respondent on 31 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion of facts. The fact that respondent is an illiterate civil contractor was considered by the original authority and waived penalty under Section 78 while adjudicating the show cause notice of subsequent period. In various judgments it has been held that mere non-declaration cannot be considered as suppression of facts. Together with this, it has to be noted that the respondent was paying service tax in 2008, 2010, 2011 etc ( ie. the period involved in this case). In these circumstances, I find that the Commissioner (Appeals) has rightly waived the penalty imposed under Section 78 of Finance Act,1994. I do not find any grounds to interfere with the impugned order. 9. In the result, the appeal is dismissed. (Pronounced in open court ..... X X X X Extracts X X X X X X X X Extracts X X X X
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