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TMI Blog2017 (5) TMI 239X X X X Extracts X X X X X X X X Extracts X X X X ..... sis of the intelligence that assessee did not pay correct service tax due to the Government, the Department carried out investigation against them. Upon conclusion of the investigations and issue of show-cause notice, the impugned order was passed demanding service tax amounting to Rs. 46,29,386/- along with interest. Penalties were also imposed under Section 76, 77 and 78 of the Finance Act, 1994. The adjudicating authority also appropriated the service tax already paid during investigation amounting to Rs. 40,98,487/- towards the confirmed service tax. Aggrieved by the impugned order, present appeal has been filed. 2. With the above background, we heard Shri B. V. Kumar, learned advocate for the appellant as well as Dr. Ezhilmathi, AR re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there was no mala fide intention to evade payment of service tax in the present case. This intention is evident from the fact that the appellant has not recovered the service tax from the service receivers. In spite of that, they have come forward to pay the full service tax dues along with applicable interest thereon. In this connection, we have gone through the case laws relied upon by the appellant. In the case of Fruition Informatics (P) Ltd. (supra), the Hon'ble Karnataka High Court has held as follows: "6. The material on record would clearly show that there was delay in payment of service tax and it is not disputed that the service tax and the interest have been deposited belatedly but the penalty amount was not deposited. The expl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence of grounds/ingredients postulated in the said provisions is a condition precedent for attracting penalty. Therefore, first, we have to find out whether in the facts of a given case whether those ingredients exist. Once it is held that those ingredients exist and the provisions are attracted, then if the language used in the said provisions do not leave any discretion in authority in the matter of imposition of penalty, penalty is to be imposed in terms of the said provision. However, if any discretion is left, then the said quasi-judicial discretion is to be exercised reasonably. Before levying penalty, the authority is required to find out whether there was any failure referred to in the concerned provision and the same was without a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fact clearly establishes the fact that the appellants had no mala fide intention to evade payment of service tax. It is also on record that as a consequence of the impugned order, the full service tax dues and interest stands paid.
5.4 In the facts and circumstances of present case, we are of the view that this is a fit case to invoke the provisions of Section 80 and waive the penalties imposed on the appellant under Section 76, 77 and 78. We order accordingly.
6. In view of the above discussions, the payment of service tax with interest is upheld, however, the penalties imposed are waived under Section 80. Appeal is disposed of in the above terms.
( Operative portion of the Order was pronounced in Open Court on 27/04/2017 ) X X X X Extracts X X X X X X X X Extracts X X X X
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