TMI Blog2008 (11) TMI 182X X X X Extracts X X X X X X X X Extracts X X X X ..... n considered in the impugned order, the impugned order is set aside and the matter is remanded to the Commissioner (Appeals) for considering as to whether in view of the facts of this case, waiver of penalty under Sections 76, 77 & 78 was warranted under Section 80 of the Finance Act. - ST/483/2008-SM(BR) - 1501/2008-SM(BR)(PB), - Dated:- 5-11-2008 - Shri Rakesh Kumar, Member (T) Shri R.K. Verma, DR, for the Appellant. Shri Atul Gupta, C.S., for the Respondent. [Order].- The respondents have Service Tax Registration since 2003 for Cargo Handling Service which they are providing to their clients. On the scrutiny of the balance sheet for the year 2004-05, it was noticed by the officers that they showed the receipt of the amou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sentative pleaded that the only provision for waiving the penalty under Section 76 or 78 is Section 80 for which assessee has to show that there was genuine reason for delay in payment of service tax on non-payment of service tax against, which has not been invoked in this case by the Commissioner (Appeals) and that payment of service tax prior to the issue of show cause notice cannot be the ground for setting aside the penalty. He emphasized that there is no automatic waiver of the penalty when the service tax has been paid prior to the issue of show cause notice. In this regard, he relied upon the Tribunal's order in the case of CCE, Ludhiana v. Silver Oak Gardens Resort reported in 2008 (9) S.T.R. 481 (Tri.-Del. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6, 77 or 78 is imposable in terms of the provisions of Section 80. 3. I have carefully considered the submissions from both the sides. The factual position that the amount of Rs. 4,23,393/- had been received from the contractors/custodian and not from the clients is not in dispute. As per the Department interpretation, this amount has to be treated as amount received for taxable service provided by the respondent to their clients as when the respondent received this amount as compensation from the contractors/custodian for failure to perform certain jobs, those jobs had been performed by them. However, the Respondent's contention is that there was confusion as to whether this amount would attract service tax or not and for this reason o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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