ORDER
M.P. Bohra, Member (J)
1. Heard Shri J.R. Madhiam, learned JDR for the Revenue and none for the respondent-company. Shri Madhiam, learned JDR submits that the respondents failed to pay the Service Tax within the scheduled date of payment as well as failed to submit the ST-3 Returns within the prescribed time period. He submits that the Commissioner (Appeals) has wrongly applied the ratio of judgments in the case of EID Parry (I) Ltd. v.
CCE and in the case of Rashtriya Ispat Nigam Ltd. v.
CCE . Shri Madhiam also submits that both the judgments relate to excise cases and are not applicable in the present set of cir-cumstances. Therefore, he submits that the impugned Order may be set aside.
2. In the present case i.e., Appeal No. ESM-438/2004, the delay relates to the period when the Association of Chartered Accountants challenged the levy of Service Tax in various High Courts. The respondents had a
bona fide belief that they were not liable to pay the Service Tax. However, they had paid the Service Tax and submitted the returns to fulfil their obligation pending decision of the Courts. It is within the competence of the authority to refuse to impose any penalty in appropriate cases. In the present case, the respondent company paid the entire Service Tax before issue of the show cause notice. The instant case is similar to the decision in the case of Commissioner of Central Excise, Mumbai v. Top Detective & Security Pvt. Ltd. , wherein it was held by the Tribunal that penalty under Sections 76 and 77 of the Finance Act, 1994 is not mandatory. The present case is squarely covered by the case of Top Detective & Security Pvt. Ltd. referred to above. In the circumstances, I do not find any infirmity in the Order of the Commissioner (Appeals). The instant appeal filed by the Revenue is of no force. Consequently, I dismiss the same.
Pronounced in the open Court.