TMI Blog2018 (9) TMI 42X X X X Extracts X X X X X X X X Extracts X X X X ..... s been paid before the Final Order was passed along with interest and penalty, the details of which has been given by him in the grounds of appeal. Further, the appellant has stated that he has paid 25% of penalty on 29.03.2011. Further, the appellant being a small businessman and is not having adequate knowledge of the Act and the Service Tax Rules and paid the entire amount along with interest and 25% of the penalty, therefore, he is entitled to the benefit of Section 80 of the Finance Act 1994 as there was a reasonable ground for failure to pay the duty in time. Penalty set aside by invoking section 80 - appeal allowed - decided in favor of appellant. - ST/2160/2012-SM, ST/2161/2012-SM - Final Order Nos. 21234 - 21235/2018 - Date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Penalty u/s 77 ₹ 5,000/- ₹ 5,000/- or ₹ 200/- per day whichever is higher Service Tax paid Service Tax ₹ 4,01,081/- (paid before SCN) ₹ 3,73,909/- (paid) Interest ₹ 90,458/- interest paid) (entire ₹ 85,595/- (paid) Penalty u/s 76 Not imposed ₹ 1,06,743/- (25% paid) Penalty u/s 78 ₹ 1,00,270/- (25% paid) Not imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeals) who modified the Order-in-Original. 2. Heard both the parties and perused the records. 3. Learned counsel for the appellant submitted that the impugned order is not sustainable in law as the same is contrary to the facts and the law. He further submitted that the appellant was under the impression that when the main contractor has paid the service tax, then the sub-contractor need not have to pay the service tax and hence he has not paid the service tax. However as soon as it was noticed by the Department, thereafter he has paid the service tax along with interest and 25% penalty on various dates and requested to allow cenvat credit. He further submitted that in para 8 of the Order-in-Appeal the Commissioner (Appeals) has obse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mposed and proceedings are conclusive. 4. On the other hand the learned AR reiterated the findings of the impugned order. 5. After considering the submissions of both the parties and perusal of the material on record, I find that the appellant as per the impugned order is entitled to cenvat credit for payment of service tax. Further I find that the appellant has paid the substantial amount before the issue of show-cause notice and some of the amount has been paid before the Final Order was passed along with interest and penalty, the details of which has been given by him in the grounds of appeal. Further I find that the appellant has stated that he has paid 25% of penalty on 29.03.2011. Further I find that appellant being a small b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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