SAI MOTORS Vs. COMMISSIONER OF SERVICE TAX, BANGALORE

JUDGEMENT

(1.) ALL these stay applications raises a common question of law and facts, hence they are taken up together for disposal as per law.

(2.) THE appellants have already discharged the Service Tax and interest involved in the matter. They are seeking for waiver of pre -deposit of penalty imposed in each of the matters in terms of the impugned order. Their contention is that the case on merits is also in their favour. Inasmuch as for they are engaged in the activity of servicing of motor vehicles and are registered under the category of Authorized Service Station. The period in dispute is from July, 2003 to February, 2005. The officers had visited the place and pointed out about their short payment of Service Tax. The appellants after noticing the short payment discharged the same through TR -6 Challans. However, they were issued with show cause notice alleging that for the said period they had not taken registration under the category of Business Auxiliary Services and had failed to discharge the tax. Their contention is that short -levy whatever was liable has already been voluntarily paid. It is submitted that the Assistant Commissioner after due consideration did not proceed to levy penalties under Sections 76 and 77 but had imposed penalty under Section 78 in view of the powers conferred under Section 80, which they have discharged. It is their contention that the Commissioner in the Review Order has enhanced the penalty under Sections 76 and 77 and has enhanced the penalty under Section 78 also.

(3.) HEARD learned Counsel. He has taken into various grounds raised by the appellants in the memo of appeal and also has relied on large number of judgments. He also submits that the demands in the first instance are barred by time yet they had not protested and discharged the duty. In such circumstance, question of levy of penalty does not arise as there was no suppression of facts or an intention to evade duty. He also relies on 25 citations to vacate his point that in this particular case there was nothing which was suppressed or evaded for levy of penalty. He submits that the Assistant Commissioner has noted that there was no mala fide on their part and had not committed any act requiring imposition of penalty.