ORDER
T.K. Jayaraman, Member (T)
1. The appellant has filed the stay application and the appeal in respect of the Order-in-Appeal No. 45/2005, daLed 23.02.2005, passed by the Commissioner of Central Excise (Appeals), Man-galore.
2. The appellant is a holder of registration for payment of Service tax in respect of security service. While paying the Service tax for the period from April, 2000 to March, 2001, the appellant had failed to include certain elements for the payment of service tax such as Provident Fund, Contribution of ESI, Gratuity, Bonus, etc. The Revenue proceeded against the appellants for penal action and recovery of the service tax which has escaped payment. The appellant pleaded that the said amounts have not included on bona fide belief that they were not required to be included. Otherwise there was no intention to evade payment of service tax. The lower authority after confirming the Service tax which has been paid after adjudication, imposed penalties under Sections 76 and 79 of the Finance Act, 1994. The appellant has strongly challenged the imposition of penalties.
3. Shri M.S. Nagarajan, the learned Advocate appeared for the appellants and Shri R.K. Singla, the learned Jt. CDR appeared for the Revenue.
4. We have heard the parties in the matter. It is the contention of the learned Advocate that certain amounts were not included for payment of Service tax, purely on account of a bona fide belief. After coming to know that these amounts have to be included, they have paid the tax after adjudication. The learned Advocate drew our attention to Section 80 of the said Act wherein there are provisions of waiver of entire penalty when Service tax has not been paid on bona fide belief.
5. The learned Jt. CDR pointed out that the appellants have not furnished all the necessary information to the Department, thereby they have suppressed certain facts; and under Section 76 of the Finance Act, penalty of Rs. 100/- per day is leviable.
6. In counter, the learned Counsel pointed out that the Hon’ble High Court of Karnataka in the case of Commissioner of Central Excise, Bangalore-H v. Sunitha Shetty 2006 (3) S.T.R. 404 (Kar.) : 2004 (174) E.L.T. 313 (Kar.) has held that penalty under Section 76 of the said Act is discretion.
7. On a careful consideration of the matter, we notice that in the present case, there is violation on the part of the appellants as certain elements which have been omitted ought to have been included in the payment of Service tax. In that view of the matter, the orders of the lower authorities are legal and proper. However, taking into consideration of the facts and circumstances of the case, we are of the view that ends of justice would be met if the penalties are reduced to Rs. 10,000/- from Rs. 50,000/- under Section 76 and to Rs. 5,000/- from Rs. 14,000/- under Section 79 of the said Act. The stay application and the appeal are disposed of in the above terms.
(Dictated and pronounced in the open court)