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2019 (5) TMI 161 - HC - Service TaxBusiness Auxiliary Services - non-payment of service tax - HELD THAT:- The learned Single Bench was right to an extent that such a plea could not be raised by the assessee at this distance off time especially when the assessee accepted the order in appeal dated 28.07.2016, participated in the de novo proceedings which resulted in order in original dated 22.01.2018. Admittedly, the assessee did not challenge the order in original dated 28.02.2016. It is the Revenue which went on appeal before the First Appellate Authority against the said order - the appeal was not on the merits of the matter but on technical ground that there was a computation error. Even assuming that the First Appellate Authority can rectify the computation error, it cannot be a case where the penalty can also be reduced more particularly when the order in original dated 22.01.2018 was accepted by the assessee and 25% of the penalty was paid within 30 days period thereby giving a protection to the assessee in terms of Clause 2 of second proviso. Therefore, considering the peculiar facts and circumstances of the case, we are of the opinion that the writ petition is untenable. The enhanced penalty cannot be demanded from the appellant/assessee. Though the appellant had filed the writ petition challenging the order in appeal dated 28.09.2018 in its entirety, we restrict the relief only to that of penalty as quantified in the said order to the tune of ₹ 4,77,542/- and the said penalty stands deleted. In all other aspects, the order in appeal dated 28.09.2018 stands confirmed. Appeal allowed.
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