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2019 (7) TMI 335 - AT - Service TaxImposition of penalty u/s 78 of FA - service tax alongwith interest paid before issuance of SCN - Section 73 (1) and 73 (3) of the Finance Act, 1994 - HELD THAT:- While discussing the applicability of extended period, the Adjudicating Authority has inter alia apparently picked up the gross receipts as per the P&L Account and gross receipts as per ST-3 from the appellant’s books and thereafter, has quoted Section 73 (1) ibid., but however, has not discussed anywhere as to the misconduct in the nature of fraud, collusion, wilful mis-statement, etc. It is a settled position of law that mere quoting of a Section or Sub-Section leads to nowhere unless the Revenue discharges the initial burden. Further, there is no doubt that the leviability of penalty under Section 78 is not mandatory and the same is controlled by Section 80 ibid. Even the Ld. Commissioner (Appeals) though recorded that Section 73 (4) prevails over Section 73 (1) and (3), but still, there is no recording of any finding as to the conduct of the appellant that could be termed as fraud, etc. The penalty under Section 78 ibid could not have been levied - appeal allowed.
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