2009 (11) TMI 247

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....esh Rastogi for the Appellant. Rupender Singh for the Respondent. ORDER 1. This is an Appeal by the Department against the order of the Commissioner (Appeals) No. 347/CE/Ldh/2008, dated 22-10-2008. 2. Heard both sides. 3. The Respondent was engaged in providing service of cable operator. The original Authority held that during the period from 1-4-2003 to 31-12-2005, the Respondent s....

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....78 to 25 per cent of the Service Tax evaded. 4. Ld. SDR submits that it is a clear case of non-payment of Service Tax knowingly by the assessee citing the ground that their association was contesting the tax liability and was taking up the matter with the higher Authorities. Under these circumstances, imposition of penalty under section 76 for the delay in payment of Service Tax and imposition ....

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....with the higher Authorities. Once it was clarified they had to pay tax, they promptly paid the same even without waiting for issue of show-cause notice. There was no deliberate intention on their part to evade the tax. They also raised the plea for benefit of granting benefit in terms of section 80 of the Finance Act before the Commissioner (Appeals). After taking all the submissions into account,....

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.... (Appeals) relying on the decision of the Tribunal in the case of Financers (supra) held that once penalty imposed under section 78 of the Act, no penalty was imposable under section 76 of the Act. It has not been shown any Appeal has been filed against the said order of the Tribunal and stay granted. The decision of the Hon'ble High Court of Kerala in the case of Krishna Poduval (supra) dealt....