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2018 (4) TMI 1978 - AT - Service TaxDenial of cum tax benefit and imposition of simultaneous penalty under Section 76 as well as under Section 78 of the Finance Act, 1994 - Non-payment of service tax - entire amount of service tax with interest was paid to the Department before issuance of SCN - Security Services - HELD THAT:- It is not in dispute that at the relevant point of time, the appellant had charged a consolidated amount from the customers and while charging such amount, the appellant was not aware about the liability of service tax payable on the security services, which they discharged subsequently. Therefore, as observed in Advantage Media Consultant’s case [2008 (3) TMI 59 - CESTAT KOLKATA] even though for the period before 2006, the tax component is inbuilt into the value charged from the customers and ought to be considered as cum-tax price; the said benefit accordingly admissible to the appellant. Simultaneous penalty under Section 76 and 78 of the Finance Act, 1994 - HELD THAT:- The issue is covered by the judgment of the Hon’ble Gujarat High Court in Raval Trading Co. case [2016 (2) TMI 172 - GUJARAT HIGH COURT]. Consequently, imposition of penalty under Section 76 of the Finance Act is liable to be set aside and accordingly, dropped. In the result, the impugned order is modified and cum tax benefit is hereby allowed penalty continued under Section 76 of the Finance Act is set aside. Further, the matter is remanded to the adjudicating authority to recalculate the amount of service tax payable after extending cum tax benefit to the appellant. Appeal allowed by way of remand.
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