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2015 (11) TMI 614 - CESTAT KOLKATAPenalty u/s 76 & 78 - Business auxiliary services - Held that:- Commissioner has dropped the penalty under Section 78 of the Finance Act while reducing the confirmed demand. I find that while confirming the penalty under Section 76 of Finance Act, 1994, the Ld. Commissioner (Appeals) has observed that since the appellant had agreed to the short payment of service tax, therefore, the penalty under Section 76 of Finance Act, 1994 is justified. The Ld. Advocate assailing the impugned Order contended that since the appellant had discharged their liability before issuance of show cause notice, therefore, in view of the specific provisions contained under Section 73(3) of the Finance Act, 1994, no show cause notice for the said liability should have been issued to them. It is conceded by the Appellant that this plea has not been raised before the Ld. Commissioner (Appeals) and advanced for the first time before this Tribunal. In the interest of justice, I am of the view that the appellant be given a fair chance to raise the said plea before the Ld. Commissioner (Appeals) and the Ld. Commissioner should accordingly consider the same and decide the issue of imposition of penalty under Sec.76 of Finance Act,1994, accordingly. - Appeal disposed of.
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