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TMI Blog2019 (2) TMI 773X X X X Extracts X X X X X X X X Extracts X X X X ..... n 65(25) of the Finance Act, 1994 b) Cargo handling service under Section 65(23) ibid c) Goods transport agency service under Section 65(50b) as well as storage and warehousing services falling under Section 65(102) ibid. 2. The Department undertook audit of the records of the assesse in June 2013. It was noticed that the appellant had not filed the periodic ST-3 returns for the period October 2008 to June 2012. Further, scrutiny of the records reveal that the appellant had not discharged service tax liability for the period in full. Accordingly, the SCN was issued to remand the unpaid S.T. SCN also included a proposal for imposing penalty under various Sections of the Finance Act, 1994. The Adjudicating authority, after conclusion of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant after the issue of SCN but before the issue of the Order-in-Original. (iii) the Ld. CA contended that the appellant cannot be held liable for the allegation of suppression of facts in as much as all the transactions stand recorded in the books of account of the appellant and only on scrutiny of such record, the Departmental officers noticed the delayed payments / non payment of service tax. As such, he submitted that the appellant will be entitled to the benefit of the provisos included in Section 78 w.e.f. 14.05.2015. (iv) He prayed that in the absence of any suppression on the part of the appellant, the adjudicating authority was not justified in imposing penalty under Section 78. In this connection, he relied upon the following cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e tax liability in full for the period October 2007 to June 2012. But the entire service tax liability alleged in the SCN now stands admitted by the appellant. Further it is seen that the entire service tax liability has also been paid by the appellant through challans. The adjudicating authority has however recorded that out of the total liability of Rs. 51.62 lakhs, the appellant had paid only an amount aggregating to Rs. 47.38 lakhs. In this connection, it has been submitted on behalf of appellant that the balance tax also was paid but the same has not been given credit by the adjudicating authority on account of certain wrong challan Nos. provided to the adjudicating authority. The chart showing the dates of payment as well as details o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evade tax or suppress the information. It is further submitted that the non payment of service tax at the relevant time was on account of the fact that the appellant did not receive the funds and the amount of service tax from their clients. In the above factual matrix, we are of the view that no malafide intention can be attributed to the appellant. The bonafide nature of the appellant is evident from the fact that the entire amount of service tax alongwith applicable interest stands paid by the appellant even before the impugned Order of adjudication was received by them. 9. The Section 80 of the Finance Act, 1994 (which was part of the statute at the relevant time) provides for waiver of the penalty. In the facts and circumstance ..... X X X X Extracts X X X X X X X X Extracts X X X X
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