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2015 (8) TMI 448 - CESTAT NEW DELHIDemand of service tax - Penalty u/s 76, 77 & 78 - Real estate service or service of construction of residential complexes - Held that:- While the Revenues contention that the respondent have not been able to show that the amount for which the said service tax demand was dropped by Commissioner (Appeals) related to construction of residential complex, the fact remains that the Revenue has not been able to show that the said amount pertained to provision of Real Estate Agent service. - Revenues appeal with regard to service tax demand of ₹ 92,998/- is not sustainable. As regards, setting aside of penalty under Sections 76 and 77 because the penalty under Section 78 was imposed, it is settled law that during the relevant period the penalty under Section 76 and 78 were not mutually exclusive. Primary adjudicating authority had not given the option of reduced mandatory penalty to the respondent and therefore as per the ratio of Gujarat High Court judgement in the case of Ratnamani Metals & Tubes Ltd. Vs. CCE [2013 (12) TMI 1397 - GUJARAT HIGH COURT]. the Commissioner (Appeals) was justified in granting that option but the Commissioner (Appeals) was required to put a condition that the said reduced penalty will have to be deposited within 30 days of the receipt of the order in appeal and by not putting that condition the Commissioner (Appeals) has certainly gone beyond the scope under Section 78 and therefore the reduction of mandatory penalty to 25% of demand without the condition of its deposit within 30 days is not sustainable. However as the option to pay reduced penalty in effect, has not been properly granted to the respondents following the ration of Gujarat High Court judgement in the case of Ratnamani Metals & Tubes (supra) it is to be granted by CESTAT. - Decided partly in favour of Revenue.
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