ORDER
M.V. Ravindran, Member (J)
1. This appeal is directed against the Revision Order dated 19-9-2005.
2. The relevant facts that arise for consideration are that the appellants are commission agents for M/s. Indian Aluminium Ltd. and were receiving the commission for selling of the goods of Indian Aliminium. They failed to take Service Tax Registration during the period of their operation i.e. from September, 2001 to March, 2002. Subsequently, the appellants paid the service tax liability and the interest thereon to the Government by TR 6 Challan dated 20th October, 2001 and 4th April, 2002. The lower authorities issued show cause notice on 18-2-2004 to the appellants directing them to show cause as to why penalty be not imposed on them under Sections 76 and 77 of the Finance Act, 1994. The adjudication order culminated in imposition of penalty of Rs. 2,000/- under Section 77 and the proceeding being dropped of imposition of penalty under Section 76. The appellants paid off amount of penalty imposed on them under Section 77. The jurisdictional Commissioner of service tax reviewed the Order-in-Original and after considering the submissions made by the appellants, imposed a penalty of Rs. 85,657/- on the appellants under Section 76 of the Finance Act, 1994.
Hence the present appeal.
3. Considered the submissions made at length from both sides and perused the records. I find that the appeal is against imposition of penalty under Section 76 of the Finance Act. That the Revisionary Order of the Commissioner directs itself to impose penalty on the ground that the decisions of the Tribunal in the cases of Central Excise are not applicable in the cases of service tax penalty under Section 76 of the Finance Act, 1994. I find that the Tribunal in the case of CCE v. Top Detective & Security Pvt. Ltd. , in an identical issue, has settled the law coming to the conclusion which is reproduced below:
Service Tax – Delay in filing of returns – Penalty – Service Tax and part of interest accrued paid even before adjudication of case – Penalty under Section 76 and 77 of the Finance Act, 1994 not mandatory for late filing of returns – Plea of appellant that late receipt of payment from customers resulted in delayed payment of service tax, taken into consideration and penalty set aside by Commissioner (Appeals) – Order of Commissioner (Appeals) proper.
This Tribunal in the case of CCE, Kolkata v. Eastern Security Concern reported in 2005 (3) STJ 714 (CESTAT-KOL), has relied upon the decision of Top Detective & Security Services Pvt. Ltd. (supra) and held that if the amount of service tax and interest thereon is paid before the issue of show cause notice then no penalty is imposable on the assessee.
4. Both the above said case laws squarely cover the issue in this case and following the above two decisions, I allow the appeal of the appellant and set aside the Revisionary Order.
5. Appeal is allowed.
(Dictated and pronounced in open Court)