ORDER
S.L. Peeran, Member (J)
1. Both the stay applications arise a common question of law and hence they are taken up together for the disposal.
Stay Application No. 190/2006 in Appeal No. 314/2006:
2. The appellant is seeking waiver of pre-deposit of penalty amount of. Rs. 38,00,000/- and further penalties imposed in the Revisional Order. The Order-in-Original passed by the Assistant Commissioner did not propose to impose penalty as part duty has been paid with interest before issue of show cause notice. He has given reason for not imposing the penalty and a categorical finding has been given that there was no mala fide intention to evade payment of service tax. The appellants were taken into consideration of having paid portion of the tax with interest before issue of show cause notice. Further, balance amount of tax was also paid with interest before the Assistant Commissioner disposed of the matter. Therefore the Assistant Commissioner did not find it a fit case for levy of interest. However, the Commissioner by the impugned Order-in-Revision has levied the penalty of Rs. 38,00,000/- which is under challenge.
3. The learned Counsel relies on the following rulings in support of their plea that the penalty is not leviable:
(i) Rashtriya Ispat Nigam Ltd. v. CCE which has been affirmed by the Apex Court reported in 2004 (163) E.L.T. A53 (S.C)
(ii) CCE Mangalore v. Shree Krishna Pipe Industries
(iii) CCE, Delhi v. Machino Montell (I) Ltd. .
4. The learned JDR defends the impugned order and submits that the penalty is leviable.
5. On a careful consideration of the matter, prima facie we notice that the entire service tax amount has been paid before the adjudicating authority passed the Order-in-Original. He has given a finding that there was no mala fide intention to evade payment of service tax. In view of the cited judgments, the appellants have strong case for granting waiver of pre-deposit of the amount. The stay application is allowed unconditionally by granting waiver of pre-deposit and staying its recovery till the disposal of the appeal. The appeal to come up for hearing in its turn.
Stay Application No. 184/2006 in Appeal No. 298/2006:
6. In this stay application, the appellant is seeking waiver of predeposit of penalty of Rs. 18,00,000/- under Section 78 of the Finance Act, 1994, besides penalty of Rs. 200/- per day under Section 76 of the Act. The issue is identical one as decided in the above matter. Hence the stay application is allowed by granting waiver of pre-deposit of the amount and staying its recovery till the disposal of the appeal. The appeal to come up for hearing in its turn.
(Pronounced and dictated in the open court)