COMMISSIONER Vs. JIVANBHAI D. MAKWANA

JUDGEMENT

(1.) In this appeal under Section 35G of the Central Excise Act, 1944 the Appellant-revenue has challenged order dated 21. 10.2009 [, 2010 (18) S.T.R. 206 (Tribunal)] made by the Customs, Excise and Service Tax Appellate Tribunal (the Tribunal) proposing the following two questions :

(2.) The Respondent was engaged in providing taxable services under the category of "manpower recruitment or supply agency" as defined under Section 65(68) of the Finance Act, 1994 (the Act) as amended from time to time. A show cause notice came to be issued on 5.1.2007, proposing to recover service tax along within interest and penalty under Sections 76, 77 and 78 of the Act. The show cause notice came to be adjudicated vide order-in-original dated 5.1.2007 whereby service tax of Rs. 1,34,263/- came to be confirmed and penalty came to be imposed under Sections 76, 77 and 78 of the Act. Being aggrieved, the Respondent preferred appeal before the Commissioner (Appeals) who dismissed the appeal. The Respondent carried the matter in second appeal before the Tribunal, who confirmed the demand of service tax but set aside the penalty under Sections 76 and 78 of the Act.

(3.) Mr. Darshan Parikh, learned Senior Standing Counsel for the Appellant, reiterated the reasoning adopted by the adjudicating authority as well as the Commissioner (Appeals). Referring to paragraph 9 of the order of the Commissioner (Appeals) it was pointed out that the Commissioner (Appeals) had found as a matter of fact that the Assessee had failed to pay the service tax on the value of taxable service realized by it after crossing the exemption limit of Rs. 4,00,000/- and suppressed the said fact with intention to evade payment of service tax to submit that considering the said fact, the Tribunal was not justified in setting aside penalties levied under Sections 76 and 78 of the Act.