(1.) THE Ld. Counsel for the applicant in this case submits that they have since paid the entire amount of duty of Rs. 1,51,928.00 (Rupees One Lac Fifty One Thousand and Nine Hundred Twenty Eight) alongwith the interest thereon. As per the orders of the authorities below they have to pay a penalty of Rs. 1,51,928.00 (Rupees One Lac Fifty One Thousand Nine Hundred Twenty Eight). He also relies upon this Tribunals decision in the case of Flyingman Air Couriers Pvt. Ltd. v. Commr of C. Ex., Jaipur reported in 2006 (3) S.T.R. 283 (Tribunal) = 2004 (170) E.L.T. 417 (Tri. -Del.) the gist of which reads as follows : Service tax - Penalty - Appellant under a bona fide belief of being not covered under definition of courier services - Service tax being a new concept, appellant having a reasonable cause for not filing necessary returns within the required period - Imposition of penalty not sustainable - Sections 77 and 80 of Finance Act, 1994 In the above decision, this Tribunal has decided that imposition of penalty in certain circumstances is not sustainable. In the order of the Bangalore Tribunal Final Order No. 1374/2004, dated 10 -8 -2006 [2006 (3) S.T.R. 385 (T) = 2004 (173) E.L.T. 137 (Tribunal)] the case of Commr. of C.E. v. Impress Ad -Aids & Displays it has been held that : Assessee did not pay service tax in time due to some confusion in initial stage but they paid same alongwith interest for delayed period immediately they knew about it. However, authority imposed a huge penalty of Rs. 1,03,200.00 for delayed payment of Rs. 13,731 only Commissioner having found that assessee did not have any intention to evade payment of service tax, held that imposition of such huge penalty especially when a new levy had been introduced was not justified - Whether in view of decision of Tribunal in case of Smitha Shetty v. CCE - 2003 (156) E.L.T. 84, Commissioner was justified in setting aside penalty -Held, yes.
(2.) I have examined the case records. Heard both the sides. In view of the facts and circumstances of the matter, the penalty amount of Rs. 1,51,928.00 (Rupees One Lac Fifty One Thousand Nine Hundred Twenty -Eight only) which is required to be pre deposited for hearing the appeal is hereby waived. Matter will be taken up in due course. Dictated & pronounced in the open court.