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2019 (5) TMI 225 - AT - Service TaxErection, commissioning and installation services - Non-payment of service tax - period Oct 2004 to April 2008 and from January 2009 to March 2009 - HELD THAT:- On both the claims relating to services rendered to SEZ as well as claim of abatement, the adjudicating authority has held that no documentary evidence have been produced by the assessee in support of the said contentions. The matter is remanded to the adjudicating authority for the limited purpose of considering these contentions of the appellants and once again determining the net tax liability that would be required to be paid up by the appellant in such de novo proceedings. Time limitation - HELD THAT:- The SCN has been issued on 20.04.2010 quite proximate to the conduct of audit. It is only due to audit, that the apparent non-payment of the disputed tax liability has surfaced - the invocation of extended period for limitation is fully justified in the matter. Penalty - HELD THAT:- It is well settled law that penalty cannot be imposed under both these sections. The penalty under Section 76 ibid is set aside - the penalty under Section 78 ibid will be commensurate with the final tax liability that may be arrived at by the adjudicating authority in the de novo proceedings ordered. However, the benefit of option of paying 25% of the penalty as per the provisions in force at the relevant time should be extended to the appellants. Penalty u/s 77 upheld. Appeal allowed in part and part matter on remand.
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