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2018 (7) TMI 31 - CESTAT CHENNAIPenalty u/s 78 - service tax as well as interest paid much before the issuance of SCN but for the audit the fact of non-payment of service tax would not have come to the notice of the department, was incorrect - Held that:- Penalty u/s 78 could be imposed only if the assessee is found to have been indulged in fraud, collusion, mis-representation, wilful mis-statement or committed the contravention as prescribed in the section - In the case on hand, there is no allegation of short payment of tax nor is it the department’s case that the tax was paid belatedly and that nothing was discovered during the course of audit with regard to the non-payment of service tax or the short levy of the same or short payment of the same having erroneously refunded. Since the controversy rests solely on the adjudicating authority’s observation vis-à-vis the appellant’s claim of having paid service tax with interest before SCN, the matter requires re-verification - appeal allowed by way of remand.
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