Per Ashok Jindal The Revenue is in appeal against the impugned order wherein the learned Commissioner (Appeals) has held that since the respondent has already paid the entire amount of service tax along with interest and also paid 25% of penalty imposed under Section 77 and 78 of the Finance Act, 1994, the penalty under section 76 of the above act is not imposable.
2. Brief facts of the case are that the respondent being a jobworker was required to pay the service tax on their activity under the category of Business Auxiliary Service during the period 2006-07 to 2009-10. When the proceedings were initiated against the respondent, they paid the service tax along with the interest. A show-cause notice was issued to the respondents proposing penalties under Section 76, 77 and 78 of the Finance Act, 1994. The said show-cause notice was contested by the respondent before the learned Commissioner with a prayer that as the appellant has already paid the service tax along with the interest before the issuance of the show-cause notice therefore, penalty under Section 76 is not sustainable. The adjudicating authority accepted the contention of the respondent and dropped the penalty proposed under Section 76 and confirmed the penalties of Rs.13,000/- and Rs.1,000/- under Section 77 and a penalty equivalent to the amount of service tax under Section 78 of the Act. On appeal, the Commissioner (Appeals) upheld the order of the adjudicating authority. Aggrieved by the order, the Revenue is before me.
3. Heard both sides.
4. The learned A.R. appearing for the Revenues contention is that the respondent has not paid the service tax in time and also submits that if there is a delay in payment of service tax, then the penalty under Section 76 of the Act, is imposable. As the respondent has contravened the provisions of section 76 and 77, therefore the penalties have rightly been imposed on the appellants.
5. I find that at the time of adjudication there was a provision that if the penalty under Section 78 of the Act is imposed, in that situation penalty under Section 76 is not imposable. The learned Commissioner (Appeals) has rightly dropped the penalty under Section 76 of the Act. In view of the above, I do not find any infirmity with the impugned order and the same is upheld. The appeal filed by the Revenue is dismissed. (Dictated in Court) (Ashok Jindal) Member (Judicial) nsk