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2012 (9) TMI 813 - HC - Service TaxWhether CESTAT was right in invoking the provisions of Section 73(1A) and setting aside the penalty levied in excess of 25% - Revenue contended that once show cause notice has been issued then the assessee is required to make payment of penalty, even if before the issuance of show cause notice, service tax and interest has been deposited - Held that:- Board's Circular No.137/167/2006-CX dated dated 03.10.2007 has considered the proviso to section 73 that where a person has paid service tax in full together with interest and penalty under sub-section (1A), the proceedings in respect of such person to whom notices are served under sub-section (1) shall be deemed to be concluded. In the instant case was not contesting the Service Tax liability and had deposited the entire service tax and interest much before the issuance of show cause notice and discharged 25% of the amount of service tax liability, and at that time, neither any penalty was levied by the appellant nor any quantum of penalty was fixed. Therefore, the assessee has not committed any illegality in not depositing any penalty amount. Penalty levied against the assessee in excess of 25% u/s 76 and 78 of the Finance Act, 1994, has rightly been set aside by the Tribunal
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