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2023 (11) TMI 371 - CESTAT NEW DELHILevy of penalty under sections 76 and 77 of the Finance Act - invocation of Section 80 of the Finance Act - service charges amounting to Rs. 3,66,93,393/- out of the total Rs. 4,30,08,843/- were actually released or not - HELD THAT:- Section 80 of the Finance Act, as was in force at the relevant time, provides that notwithstanding anything contained in the provisions of section 76 or section 77, no penalty shall be imposable on the assessee for any failure referred to in the said provisions, if the assessee proves that there was reasonable cause for the said failure. When in the earlier two matters, section 80 of the Finance Act had been invoked and penalties under sections 76 and 77 of the Finance Act were dropped, there is no good reason as to why the provisions of section 80 were not invoked by the Commissioner (Appeals) in the present case to drop the penalties under sections 76 and 77 of the Finance Act. This apart, a perusal of the order passed by the Tribunal on 06.02.2018 also shows that the bona fides of the appellant were not in doubt and, therefore, the extended period of limitation was not invoked. In this view of the matter, the imposition of penalties under sections 76 and 77 of the Finance Act cannot be sustained. As this issue has not been decided by the Commissioner (Appeals), it will not be appropriate for the Tribunal to record a finding in the first stance. The matter would have to be remitted to the Commissioner (Appeals) to decide this issue in accordance with law. While confirming the demand of service tax, the penalty imposed upon the appellant under sections 76 and 77 of the Finance Act are set aside and the matter is remitted to the Commissioner (Appeals) only for the limited purpose of deciding whether the appellant was justified in paying service tax on Rs. 3,66,93,393/- - Appeal allowed.
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