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CUSTOM EXCISE & SERVICE TAX APPELLATE TRIBUNAL, MADRAS
JYOTI BALASUNDARAM, Vice President
Sri Krishna Smelters Ltd. -Appellant
Versus
Commissioner of Central Excise, Salem -Respondent
Final Order No. 805 of 2010 Stay Order No. 327 of 2010 Application No. ST/Stay/170 of 2010 Appeal No. St/295 of 2010
Decided On : 22-07-2010
M.N. Bharathi,A.B. Niranjan Babu
1. After hearing both sides on the application for waiver of pre-deposit of penalty of Rs. 48,252 under the provisions of section 78 of the Finance Act, 1994, I find that it is possible to decide the appeal itself at this stage and hence proceed to do so, with the consent of both sides, after granting the prayer for stay.
2. The tax demand is not disputed by the assessees and stands paid. The explanation put forth by the assessees for non-payment of service tax within time is that there was no intention to evade payment of tax as the entire amount of tax was available to them by way of credit and in fact they have taken credit. Their further submission is that the authorities below have invoked section 78 only on the ground of failure on the part of the assessees to file the returns. This, to my mind, is not sufficient to hold that the assessees guilty of suppression so as to impose penalty under section 78. Considering the fact that the entire amount of tax demand is available to the assessees as credit, no intention to evade payment of tax can be established against them. Hence, the penalty imposed under section 78 cannot be sustained and accordingly, I set aside the penalty. The appeal is thus allowed by setting aside the penalty.
