TMI Blog2008 (6) TMI 73X X X X Extracts X X X X X X X X Extracts X X X X ..... nt. Shri T.C. Rajadas, SDR, for the Respondent. [Order] - After examining the records and hearing both sides, I am of the view that the appeal itself requires to be finally disposed of at this stage. Accordingly, after dispensing with pre-deposit, I proceed to deal with the appeal. 2. In adjudication of a show-cause notice, the original authority had confirmed demand of service tax of Rs. 2,60,225/- and education cess of Rs. 5,204/- totaling to Rs. 2,65,429/- against the appellant for the period 10-9-2004 to 30-6-2006 under the proviso to Section 73(1) of the Finance Act, 1994 and had imposed penalties of Rs. 10,000/-, Rs. 1,000/- and Rs. 10,000/- on them under Sections 76, 77 and 78 of the Act respectively. The authority had a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... original authority were also paid shortly after the order of adjudication was passed. It is further submitted that the tax liability of the appellant is not in dispute, but, during the material period, there was a doubt in the appellant's mind as to whether service tax was liable to be paid on the amounts collected by them from their customers. It is submitted that this was enough reason under Section 84 of the Act for not imposing penalty on the party under the other provisions. However, it is submitted, the appellant accepted the decision of the original authority under the said provisions (Sections 76, 77 and 78). The learned consultant also relies on certain decisions of the Tribunal in support of some of the above submissions. I have h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they had wilfully evaded payment of service tax. This finding was also accepted by the party. Therefore, I am not in a position to accept the plea of doubt, bona fide belief etc. raised by the appellant in the present appeal. Where the finding of wilful evasion of service tax has been accepted, it cannot be said that the non-payment of tax was on account of doubt, bona fide belief etc. and, consequently, it cannot be held that reasonable cause was shown for such non-payment of tax, for the benefit of Section 80 of the Finance Act. The original authority imposed a penalty of Rs, 10,000/- on the assessee "in exercise of the powers under Section 80". Having found that no valid ground for the benefit of Section 80 was established by the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dvertising Marketing v. CCE - 2008 (9) S.T.R. 129 (Tri.- Mumbai) (ix) Commissioner of Service Tax v. Prompt Smart Security - 2008 (9) S.T.R. 237 (x) Opus Media Entertainment v. CCE - 2008 (9) S.T.R. 284 (Tri.-Del.) (xi) Noida Catering Service v. CCE - 2008 (9) S.T.R. 194 (Tri.-Del.) 7. In the result, the appeal is dismissed in relation to the penalty imposed on the appellant by the revisional authority under Section 78 of the Finance Act, 1994 and is allowed by way of remand as regards the penalty under Section 76 of the Act. The learned Commissioner shall pass fresh order on the question as to what amount of penalty is liable to be imposed on the assessee under Section 76 of the Finance Act, 1994. It goes wit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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