TMI Blog2017 (11) TMI 882X X X X Extracts X X X X X X X X Extracts X X X X ..... dvocate, For the Appellant Shri Madhupsharan, Assistant Commissioner (AR), For the Respondent ORDER Per: S.S GARG The present appeal is directed against the impugned order dated 12.04.2010 passed by the Commissioner in exercising of his Revisionary Jurisdiction and imposed the penalty under Section 76, 77 and 78 on the appellant. Briefly the facts of the case are that the appellant are rendering the services under the category of Cleaning Service . Cleaning Service is taxable under Section 65(105)(zzzd) of the Finance Act 1994 with effect from 16.06.2005. On gathering intelligence that the assessee is not discharging the service tax correctly, the unit was visited and records verified. Verification of records reveale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore the Joint Commissioner did not impose any penalty under Sections 76, 77 and 78 of the Act in exercise of his power conferred under Section 80 of the Act. Thereafter the Commissioner by exercising his revisionary power has set aside the Order-in-Original and imposed the penalty. Aggrieved by the same the appellant has filed the present appeal on the ground that there was no intention to evade tax on the part of the appellant, as soon as the Department pointed out that the appellant is liable to service tax, he paid the same along with interest in spite of the fact that he has not collected the service tax from his customers. He further submitted that the service tax on this Cleaning Service was introduced w.e.f. 16.06.2005 and the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Hon ble High Court has held that when the assessing authority in its discretion has held that no penalty is leviable by virtue of Section 80 of the Act, the revisionary authority cannot invoke his jurisdiction and impose penalty for the first time. Further I find that the decision relied upon by the AR is not applicable in the facts and circumstances of the case and the facts of that case are distinguishable. In conclusion, I hold that the decision of the Karnataka High Court is squarely applicable in the present case and by following the ratio of the said decision, I am of the view that the impugned order is not sustainable in law and therefore I set aside the same by allowing the appeal of the appellant with consequential relief. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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