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2014 (1) TMI 44 - CESTAT NEW DELHIDemand of service tax - Penalty u/s 76 & 78 - Service of Tour Operator' & 'Rent-a-cab operator' - Held that:- assessee was providing buses to L.G. Electronics for dropping the staff of L.G. Electronics and was receiving the payment for the service. We find that the definition of tour is to mean a journey from one place to another irrespective the distances between such places and taxable service means any service provided to any person by a Tour operator in relation to tour. We find that there is no dispute that the activity of assessee for providing buses to L.G. Electronics for dropping of the staff is covered under the definition of the Tour and consequently the appellant/assessee is also falls under category of Tour operator. Commissioner (Appeal) in the impugned order has set aside the penalty under Section 78 of the Finance Act and reduced the penalty under Section 76 of the Act invoking the Section 80 of the Finance Act. We find that if the Section 80 is invokable then the penalty under Section 76 also cannot be imposed. We therefore find contradiction in the findings of the Commissioner (Appeal) in reducing penalty under Section 76 of the Finance Act and setting aside penalty of 78 of the Act. We therefore remand the matter back Commissioner (Appeal) Central Excise to decide the matter after considering the No. 15/2007 dated 04.04.2007 issued under Section 11C of the Central Excise Act and also decide the issue with regard the imposition penalty of under Section 76 and 78 of the Finance Act, afresh after affording hearing to the appellant - Decided partly in favour of assessee.
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