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2010 (7) TMI 774 - HC - Service TaxDemand of service tax and penalty - Air Travel Agent’ service - SCN, alleging that the petitioner-assessee had short-paid service tax - petitioner-assessee had paid service tax voluntarily before the issuance of show cause notice - Benefit of proviso to Section 78 - person, liable to pay such service tax or erroneous refund, as determined under sub-section (2) of section 73, shall also be liable to pay a penalty, in addition to such service tax and interest thereon, if any, payable by him, which shall not be less than, but which shall not exceed twice, the amount of service tax so not levied or paid or short-levied or short-paid or erroneously refunded - Provided that where such service tax as determined under sub-section (2) of section 73, and the interest, payable thereon under section 75, is paid within thirty days from the date of communication of order of the Central Excise Office determining such service tax, the amount of penalty liable to be paid by such person under this section shall be twenty-five per cent of the service tax so determined, assessee claims to have paid service tax much prior to the determination of its tax liability under sub-section (2) of Section 73 - Matter remanded to Adjudicating Authority and directed to consider the question whether or not the petitioner-assessee has discharged its tax liability in terms of the first proviso to Section 78 of the Act. On proper and correct quantification of tax liability under the Act with relevant dates of payments, if the Adjudicating Authority comes to the conclusion that the petitioner-assessee is entitled to the benefit of the first proviso to Section 78, the Adjudicating Authority shall grant the benefit to the petitioner-assessee while quantifying its tax liability, appeal is dismissed
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