TMI Blog2019 (1) TMI 1431X X X X Extracts X X X X X X X X Extracts X X X X ..... osed under Section 78 is liable to be set aside which we hereby do. The penalty imposed under Section 77, however, is upheld - appeal allowed in part. - Application No.: ST/Misc[CT]/41493/2017, Appeal No.: ST/00268/2012 - Final Order No. 43042/2018 - Dated:- 14-11-2018 - Shri Madhu Mohan Damodhar, Member (Technical) And Shri P. Dinesha, Member (Judicial) Shri. S. Sivaramakrishnan, Advocate Shri. J. Shankararaman, Advocate for the Appellant Ms. T. Usha Devi, DC (AR) for the Respondent ORDER Per P. Dinesha : The appellant is engaged in providing Housekeeping and Secretarial Service to clients in Chennai and Coimbatore and are holders of Service Tax Registration. 1.2 During the course of audit of accounts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Order-in-Original No. 74/2011 dated 28.12.2011 confirmed the proposed demand and interest while imposing equal penalty under Section 78 and penalty of ₹ 5,000/- under Section 77 of the Act. The adjudicating authority also appropriated the demand of ₹ 68,01,113/- and interest of ₹ 16,65,317/- already paid by the appellant. Aggrieved therefore by the imposition of penalty, the appellant is in appeal before this forum. 2. Today when the matter came up for hearing, Ld. Advocates, Shri. S. Sivaramakrishnan and Shri. J. Shankararaman appeared on behalf of the appellant and Ld. DC (AR) Ms. T. Usha Devi appeared on behalf of the Revenue. 3.1 During the course of hearing, Ld. Advocates submitted that the appellant faced a hu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f this Tribunal in the case of M/s. Jayem Automotive Ltd.(supra) we note that after considering the rival contentions, this Bench has ruled as under : 6. The appellant has confined the contest to the penalties imposed. In Appeal No. ST/280/2011, the penalty is imposed under Section 78 whereas in Appeal No. ST/281/2011 the penalty imposed is under Section 76 of the Finance Act, 1994. 7.1 The Ld. Counsel for appellant has submitted that their failure to make the payment was because the appellant was under much financial crisis during the disputed period. Even in the reply to the Show Cause Notice, they have stated that the delay/default was due to severe financial crisis. That they have given priority to the day-to-day expenses i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de the penalties imposed. The ground raised by the assessee in that case was that the assessee was undergoing much financial hardship. The Hon ble High Court held that the penalties imposed under Section 77 and 78 ibid., set aside by the Tribunal invoking Section 80, was correct and proper. The relevant portion of the judgment is reproduced as under : 28. Though Mr. A. P. Srinivas, learned counsel appearing for Customs, Central Excise and Service Tax, reiterated the grounds of challenge, we are not inclined to accept the same for the reason that both the adjudicating authority viz., the Commissioner of Customs, Central Excise, and Service Tax, Coimbatore, as well as the final fact finding appellate authority, CESTAT, Madras, have cate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have been rightly set aside invoking Section 80. The Tribunal in the case of M/s. Dusters Total Solutions Services Pvt. Ltd. Vs. C.S.T., Chennai vide Final Order No. 41943/2018 dated 28.06.2018 had analysed the invocation of Section 80 to set aside the penalty imposed under Section 76, 77 and 78 of the Act, ibid. The appellant having paid entire demand of service tax along with interest, the prayer for setting aside the penalties, in our view, merits consideration, especially when there is no evidence to show that the delay/default was due to any wilful act to evade payment of duty. 8. From the above discussions and following the ratio laid down in the above case laws, we are of the opinion that this is a fit case to invoke Section 8 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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