ORDER
S.L. Peeran, Member (J)
1. The appellant is seeking waiver of pre-deposit of penalty of Rs. 5/- lakh. The Original Authority had confirmed Service Tax but in facts and circumstances of the case held that they are not liable to the higher penalty and penalty of only Rs. 10,000/- was imposed as the Service Tax is only Rs. 4,65,929/-. The appellants had paid the Service Tax along with interest and the same has been appropriated in Order-in-Original. The Revenue was aggrieved with the order of the Assistant Commissioner and filed a review before the Commissioner and the Commissioner has enhanced the penalty to Rs. 5/- lakh and hence, this appeal along with the stay applications.
2. Heard learned SDR and the learned Counsel.
3. It is the submission of the learned Counsel that the penalty is very excessive compared to the Service Tax confirmed. They have already paid the Service Tax along with interest even before the issue of show cause notice but penalty of Rs. 10,000/- was paid after the proceedings. He relies on large number of judgments to substantiate his plea that no penalty is leviable.
4. Heard learned SDR, who submits that higher penalty was leviable in the present case under Section 78. She submits that in terms of this section equal penalty imposed is a minimum penalty.
5. On our careful consideration, we notice that the learned Counsel has relied on 10 rulings cited in the appeal memo. The same was also noted before the Commissioner but the Commissioner has not referred to any of these judgments while recording his findings. To that extent, the order is not a speaking order. Therefore, the stay application is allowed granting waiver of pre-deposit and staying recovery of the penalty amount. Matter to come up before Single Member Bench, when it is constituted. Appeal to come up in its turn.
(Pronounced and dictated in open Court)