TMI Blog2009 (11) TMI 226X X X X Extracts X X X X X X X X Extracts X X X X ..... ase for waiver of penalty by invoking section 80. Accordingly, the penalty under section 78 would be attracted. However, as the assessee had paid the entire amount along with interest prior to issue of SCN and since in the order in original issued by the adjudicating authority, the option to pay service tax along with interest with in 30 days time had not been given, the assessee would be eligible for reduced penalty first proviso to section 78. So far as imposition of penalty under section 76 was concerned. thus the matter is to e remand back. - 527 OF 2008 - 1508 OF 2009-SM (BR) - Dated:- 19-11-2009 - RAKESH KUMAR, TECHNICAL MEMBER Ms. Renu Gupta for the Appellant. S.K. Bhaskar for the Respondent. ORDER 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mount received by them from M/s. IFFCO should be treated as cum-tax amount and the service tax liability should be re-determined on that basis and in this regard she relied upon the Tribunal's judgment in the case of CCE ST v. Prompt Smart Security [2008] 16 STT 166 (Bang. - CESTAT), Rajkumar Jain v. CCE [Final Order No. 204/2008-ST in Appeal No. ST/229/2007, dated 7-8-2008]; that on the question as to whether the appellant being sole proprietor was liable to pay the service tax there was dispute and therefore, penalty under sections 76 and 78 was not called for and in this regard, the appellant relies upon the Tribunal's judgment in the case of Kamdhenu Air Services v. CC CE [2009] 20 STT 75 (New Delhi - CESTAT). She also pleaded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ind that since this point had not been raised before the Commissioner (Appeals), the same has to be considered by the Commissioner (Appeals) for which this matter has to be remanded. 5. As regards the question of penalty on the appellant, the appellant have cited the judgment of the Tribunal in the case of Kamdhenu Air Services (supra). In the case of Khamdhenu Air Services (supra), the appellant has been providing taxable service of courier service and there was dispute as to whether the appellant being sole proprietorship firm providing courier agency's service would be liable to pay the service tax. In case of courier agency service, the service tax was chargeable only in respect of the service being provided by a commercial conce ..... X X X X Extracts X X X X X X X X Extracts X X X X
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