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2019 (11) TMI 789 - CESTAT MUMBAIImposition of penalty u/s 78 - tax alongwith interest paid before issuance of SCN - Security Agency Service - reduction of penalty - HELD THAT:- The second proviso to Section 78 bid provides that where such service tax and the interest payable thereon is paid within thirty days from the date of the communication of the order determining the liability, the amount of penalty liable to be paid by such person under the first proviso to Section 78 shall be 25% of such service tax - From a perusal of the impugned order it is clear that the demand has been reduced by the learned Commissioner to ₹ 12,48,822/- from ₹ 14,38,822/- on the ground that the service tax on the amount of ₹ 3,19,607/- was not received by the Appellant from M/s. Radission Resort and Spa Ltd. till the date of passing of the impugned order. The provision of Service Tax point of Taxation Rules prevailing during the relevant period specifically provides that the service tax was required to be paid on receipt basis and since this amount of ₹ 3,19,607/- was not received by the Appellant, therefore there Appellant was not required to pay the said amount and hence the learned Commissioner was justified in extending the benefit of point of taxation (till June, 2011) proportionately to the extent of ₹ 1,89,241/-. Reduction of penalty - HELD THAT:- The learned commissioner reduced the amount of Service Tax demanded by the amount of ₹ 1,89,241/- alongwith reduced penalty by the same amount. So the amount can be said to be re-determined by the learned commissioner and since the appellant has paid the complete reduced amount of service tax with complete interest and 25% of the amount of reduced penalty as determined by the ld. Commissioner, within thirty days from the date of passing of the impugned order, therefore in the peculiar facts of the case the benefit of second proviso to Section 78(1) of the Finance Act, 1994 can be extended to the Appellant - the impugned order modified to the extent of reducing the amount of penalty to 25% while maintaining the impugned order in all other aspects. Appeal allowed in part.
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