ORDER
M.P. Bohra, Member (J)
1. Heard Shri K.K. Sanyal, learned JDR for the Revenue and Shri Rajiv Kumar Agarwal, Consultant for the respondent company. Shri Sanyal, learned JDR submits that the respondents failed to pay the Service Tax within the scheduled date of payments 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 judgements in the case of EID Parry (I) Ltd. v. CCE reported in 2003 (58) RLT 63 and in the case of Rastriya Ispat Nigam Ltd. v. CCE . Shri Sanyal also submits that both the judgements relate to excise cases and are not applicable in the present set of circumstances. Therefore, he submits that the impugned Order may be set aside.
2. Learned Consultant, Shri Rajiv Kumar Agrawal for the respondent company supports the impugned Order. He submits that certain provisions of the Central Excise Act have been made applicable to the Service Tax. Therefore, the ratio of those judgements rendered in excise cases, are equally applicable in the present set of circumstances.
3. In the present case i.e., Appeal No. ESM-415/04, 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 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 Section 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.
3.1 Appeal No. ESM-359/04 also disposed of by virtue of the Order passed in Appeal No. ESM-415/04.