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2016 (6) TMI 160 - AT - Service TaxWaiver of penalty - Imposed under Section 78 of the Finance Act, 1994 - Services of Storage and Warehousing to various industries - non-payment of tax during the period Sept'2008 to Dec'2009 - entire demand along with interest paid before issuance of SCN - Held that:- both the OIO and OIA have justified the imposition of penalty under Section 78 of the Act without appreciating the fact that the ingredients have not been incorporated in the show cause notice. The findings given by the first appellate authority in his order is to the effect that the payment of service tax, whether before or after the issue of show cause notice cannot alter the liability of penalty, as per Section 78 of the Finance Act and that the appellant has already been spared from non-imposition of penalty under section 78 of the Act. This is clearly an erroneous finding as the penalty under section 78 can be imposed only under the circumstances mentioned in the section. As per Judgment of Hon'ble Supreme Court in the case of CCE, Nagpur Vs Ballarpur Industries Ltd. [2007 (8) TMI 10 - SUPREME COURT OF INDIA], the show cause notice is the very foundation in any proceedings. What is not alleged in the show cause notice, cannot be traversed at a later point of time in any proceedings. Therefore, by following the same the penalty under section 78 of the Finance Act is unsustainable which is proved by the judgment of the Tribunal in the case of CST, New Delhi Vs Independent News Services P.Ltd. [2011 (3) TMI 173 - CESTAT, NEW DELHI]. Accordingly penalty is set aside. - Decided in favour of appellant
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