ORDER
S.L. Peeran, Member (J)
1. By this stay application, the appellant is seeking waiver of pre-deposit of penalty amount of Rs. 3,26,426/-. They have already deposited the Service Tax amount. The appellants were registered and were discharging service tax for the services of ‘Clearing and Forwarding Agent’. They have filed the ST-3 returns. The department verified the records and found that they had shown gross taxable value in the Profit and Loss Account in the Financial Year 2002-03 and in terms of the said profit and loss accounts, there was a short levy. Hence show cause notice was issued in October 2004. The appellants contested the case on the ground that what was shown in the gross amount were also included the non-taxable services like photostat, fax, courier service, etc. These items were deductible and therefore service tax is not leviable. He also submits that there is no suppression of facts for imposition of penalty in the matter. However these pleas were not accepted by the adjudicating authorities. He submits that as the service tax has already been deposited and there is no suppression of facts, the imposition of penalty is not sustainable.
2. The learned DR defends the impugned order.
3. On a careful consideration of the submissions made by both the sides, prima facie, we find that the appellants have made out a strong case for non-levy of penalty as all the facts had been disclosed to the Revenue and there was no suppression of facts in the matter. The show cause notice was issued after a considerable time. The appellant’s plea of the non-deductible services had not been scrutinized by the authorities below. Hence the stay application is allowed by granting waiver of pre-deposit of penalty and staying its recovery till the disposal of the appeal. The appeal to come up for final hearing in its turn.
(Pronounced and dictated in the open court)