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2014 (4) TMI 362 - AT - Service TaxRectification of mistake - valuation - Penalty u/s 76 - Held that:- for imposition of penalty under Section 76, no mens rea is required. Penalty is imposable if there is default or delay in payment of tax. Therefore, we do not accept the argument that we have committed the error in upholding the imposition of penalty under Section 76 of the Finance Act, 1994. Regarding cum-tax treatment - Held that:- appellant should be given cum-tax treatment in respect of consideration received, this argument is also misplaced. The Hon'ble Apex Court in the case of Amrit Agro Industries - [2007 (3) TMI 14 - SUPREME COURT OF INDIA] in the context of Central Excise duty has held that unless it is shown by the manufacturer that he price of goods included excise duty payable, no question of exclusion of duty element will rise for determination of value under Section 4(4)(d)(ii) of the Central Excise Act, 1944 and one cannot go by general implication that wholesale price would always mean the cum-duty price. The same ratio would apply to the facts before us. The appellant has not led any evidence before us to show that price charged by them was cum-Service Tax - Rectification denied.
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