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2019 (11) TMI 495 - AT - Service TaxMaintainability of appeal - non-payment of pre-deposit - section 35F (1) of the Central Excise Act 1944 - Imposition of penalty - renting of immovable property - duty demand against renting of immovable property with retrospectively effect from 1-6-2007 for the period between 2008-09 and 2011-12 - extended period of limitation - HELD THAT:- It is observed that Learned Commissioner (Appeals) had dismissed the appeal before him under section 35F (1) of the Central Excise Act 1944 for non-payment of pre-deposit at the required rate and simultaneously also discussed on the merit of the appeal. Going by the statutory provision contained in section 35F (1), he should not have entertained the appeal for hearing without payment of pre-deposit and in such a case merit of the appeal should not have been discussed since the same amount to admission of appeal and its disposal on merit. Further, section 80 (2), as was existing during the relevant period permits non imposition of penalty if service tax payable as on 6-3-2012 was paid along with interest in full within six months of Finance Act 2012 coming into force. However, going by the provision containing in section 80(1), which is applicable to the present case of the appellant since there is reasonable cause for the failure on the part of the appellant in non-payment of service tax during the period of hegemony of taxability on renting of immovable property, no penalty is leviable on the appellant. The order passed by Commissioner (Appeals) Central Excise & GST, Nagpur to the extent of imposition of penalty of ₹ 28,61,269/- u/s 78 of the Finance Act is here by set aside - Appeal allowed - decided in favor of appellant.
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