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2011 (7) TMI 127 - AT - Central ExcisePenalty u/s 76 and 77 - Provision of section 80 - Maintenance and repair services - Service tax with interest was paid by the respondents even before issue of show cause notice but unfortunately while paying the amount, the interest of Rs. 118/- was short paid. Because of this reason, the provisions of Section 73 (3) cannot be applied since entire amount with interest has not been paid and if the entire amount has not been paid, proceedings can be initiated according to the law - Once delay in payment is established and show cause notice has been issued, penalty under Section 76 as per the amount prescribed in the Section, have to be imposed unless respondent is able to show reasonable cause for non payment of service tax or delay in payment and if Section 80 of Finance Act, 1994 is not invokable, penalty becomes imposable - Hence, at no stage during the course of proceedings before the adjudicating authority or appellate authority or before the Tribunal when the matter was heard in 2009, the respondents have pleaded the invocation of provisions of Section 80 of Finance Act, 1994 - Thus, it would not be appropriate to invoke the provisions of Section 80 at this stage - Appeal filed by the Revenue is thus allowed.
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