TMI Blog2019 (7) TMI 335X X X X Extracts X X X X X X X X Extracts X X X X ..... ion leads to nowhere unless the Revenue discharges the initial burden. Further, there is no doubt that the leviability of penalty under Section 78 is not mandatory and the same is controlled by Section 80 ibid. Even the Ld. Commissioner (Appeals) though recorded that Section 73 (4) prevails over Section 73 (1) and (3), but still, there is no recording of any finding as to the conduct of the appellant that could be termed as fraud, etc. The penalty under Section 78 ibid could not have been levied - appeal allowed. - Service Tax Appeal No. 42433 of 2018 - FINAL ORDER NO. 40899/2019 - Dated:- 4-7-2019 - MR. P. DINESHA, MEMBER (JUDICIAL) Shri. Ganesh Prabhu, Consultant for the Appellant Shri. B. Balamurugan, A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suppression, etc. (v) There is a clear observation by the Adjudicating Authority that Service Tax was paid on bills raised, which was clearly the case of the appellant also because of the method of accounting followed and that in any case, the bona fides of the appellant have not been doubted; (vi) The demand has been raised alleging non-payment/short payment based on the Revenue audit, which only went by the Books of Account, P L Account and balance-sheet to be precise and hence, there was nothing that was suppressed, for invoking the larger period of limitation; (vii) The Adjudicating Authority himself has, in the table at page 6 (paragraph 6.1) of the Show Cause Notice, recorded inter alia the gross receipts as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich the Ld. Consultant for the appellant has answered stating that it was the method of accounting that was regularly followed by the appellant that required recording of the amounts in the bills raised and that in some cases, the appellant had not even charged Service Tax. 7.2 Further, at page 6 (paragraph 6.1) of the Show Cause Notice, while discussing the applicability of extended period, the Adjudicating Authority has inter alia apparently picked up the gross receipts as per the P L Account and gross receipts as per ST-3 from the appellant s books and thereafter, has quoted Section 73 (1) ibid., but however, has not discussed anywhere as to the misconduct in the nature of fraud, collusion, wilful mis-statement, etc. It is a se ..... X X X X Extracts X X X X X X X X Extracts X X X X
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