TMI Blog2008 (5) TMI 108X X X X Extracts X X X X X X X X Extracts X X X X ..... er No. 495/2008 dt. 22.5.2008 certified on 30.5 .2008 in Appeal No. ST/83/2006) Shri M.K.A.K. Mohideen, JDR for the Appellant. Ms. Yogalakshmi, Adv. for the Respondents. [Order per P. Karthikeyan Member (Technical)] - The respondents M/s. T. Stanes Company Ltd. rendered Clearing and Forwarding Agents' Services to M/s.. Indofill Chemicals Ltd. Mumbai. On scrutiny of the records of the respondents it transpired that they had short-paid the tax due during the period 1999-2003. The lower authorities found that the respondents had not included all elements of taxable value in the assessable value for the purpose of payment of service tax. The original authority demanded differential duty of Rs. 39,750/- for the period March 2000 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er urged in the appeal on the grounds raised therein. 4. The learned counsel for the respondents places reliance on the following case law: (i) Commissioner of Service Tax, Mumbai Vs. S.R. Enterprises reported in 2008 (84) RLT 307 (Bom.)=2008 (9) STR 13 (Bom.). In the above judgment the Hon'ble High Court of Bombay held as follows: "The learned CESTAT on the facts and circumstances reduced the amount of penalty under the provisions of the Finance Act. On consideration of provisions of Sections 76, 77 and 80 of the Finance Act, we have held that there is power in the authority to reduce the amount of penalty". It was held that unless the power was exercised arbitrarily that Court would not interfere with the exercise of discretio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /s. Inma International Security Academy Pvt. Ltd. (supra) and CCE Vs. Pandian Hotels Ltd. (supra) are relied on in support of the proposition that Section 76 did not give any discretion to the authority to impose a penalty of less than Rs. 100/- per day for the delay in payment of the service tax not paid in time. From the impugned order, I find that the lower authorities held that the failure of the respondents to pay the entire tax due in time was not on account of any deliberate omission. An element of confusion existed in categorizing the activities by the appellants. The failure observed on the part of the respondents 'was on account of interpretation'. Under these circumstances, the Commissioner (Appeals) observed that the respo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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