TMI Blog2008 (11) TMI 91X X X X Extracts X X X X X X X X Extracts X X X X ..... man, Member (Technical) (Final Order No. 1279/2008 dt. 11-11-2008 certified on 8.12.2008 in Appeal No. ST/353/2008,) Shri S. Ramasubramanian, Chartered Accountant for Appellant. Smt. Sudha Koka, SDR for Respondent. [Order per: T.K. Jayaraman Member (Technical)] - This appeal has been filed against the Order-in-Appeal No. 188/2008-ST dated 29.05.2008 passed by the Commissioner of Central Excise (Appeals-II), Bangalore. 2. Shri S. Ramasubramanian, the learned Chartered Accountant appeared on behalf of the appellant and Smt. Sudha Koka, the learned SDR, for the Revenue. 3. Heard both sides. 4. The appellant are engaged in the service of Tour Operators for payment of Service Tax. They have been availing 90% aba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication of the service tax liability. In any case, they are not challenging it now by claiming any refund. He stated that this issue was elaborately dealt with in the decision of this Tribunal in the case of CST, Bangalore Vs. Prompt Smart Security - 2008 (84) RLT 103 (CESTAT-Bang.) = 2008 (9) STR 237 (Tri.-Bang.) wherein the penalty under Section 78 was set aside when the service tax had been paid along with interest before the issue of Show Cause Notice. In this case also, the service tax was paid before the issue of Show Cause Notice. 5. The learned Departmental Representative stated that in the case decided by this Bench, the circumstances were entirely different. There have been different interpretations with regard to the se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Tri.-Del.). Since penalty under Section 78 is imposed, penalty under Section 76 requires to be set aside. In the circumstances, I conclude that the demand and confirmation of service tax as discussed above along with interest and imposition of penalty under Section 77 78 ibid sustains." 6. On a very careful consideration of the issue, I find that the appellant had wrongly availed 90% abatement for paying service tax in respect of the service rendered as 'Rent a Cab Operator'. I have also seen the Show Cause Notice issued on this behalf. It is not the case of the Revenue that the appellant had collected the service tax on the entire amount but paid only the tax after availing 90% abatement. In fact, on the advice of their client, they ..... X X X X Extracts X X X X X X X X Extracts X X X X
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