KALYANI MOTORS Vs. COMMISSIONER OF SERVICE TAX

JUDGEMENT

(1.) THE applicant is required to pre -deposit penalty of Rs. 2,88,000/ -. The appellants were brought under the category of Business Auxiliary Services. The original authority, after due consideration of the entire matter, dropped the proposal to impose penalty in view of the fact that there was no suppression of facts and extended period had not been invoked. The applicants had although delayed in payment of Service Tax and in filing the returns, but in any case, the Assistant Commissioner found that it was not a fit case for levy of penalty. However, on Review, the Commissioner has held that it is a fit case for imposition of penalty and has imposed penalty of Rs. 200/ - per day under Section 76 and Rs. 1,000/ - under the provisions of Section 77 and has enhanced the penalty of Rs. 2,000/ - to Rs. 2,88,000/ - under Section 78 of the Finance Act, 1994. The applicant's contention is that they had paid the Service Tax before the issue of Show Cause Notice and, therefore, in the light of several judgments of Apex Court, High Court and the Larger Bench of the Tribunal, penalty was not leviable.

(2.) THE learned JDR submits that similar matters have been listed for final hearing on 05.10.2007 for fresh consideration with regard to levy of penalty in such circumstances.

(3.) ON a careful consideration, it is seen that the applicants had discharged the Service Tax. The original order dropped the proceedings pertaining to levy of penalties on this count. The Review Order has not accepted the judgments on the issue. All similar matters are being listed for final hearing on 05.10.2007. Therefore, the stay application is allowed granting waiver of pre -deposit and staying its recovery. Appeal to be linked with similar matters coming up on 05th October, 2007. Stay application allowed.