TMI Blog2013 (11) TMI 1507X X X X Extracts X X X X X X X X Extracts X X X X ..... the facts and circumstances of the case, there is force in the submission of the appellant that there was reasonable cause for delay in payment of tax for the period Oct 10 to Mar 11. So I invoke the provisions of section 80 of the Act and waive the penalty imposed on the appellant. Thus the demand of tax along with interest is upheld and penalty imposed is set aside - Decided partly in favour of assessee. - Appeal No.ST/40077, 40078/2013 - FINAL ORDER No.40427-40428/2013 - Dated:- 20-9-2013 - Shri Mathew John, J. For the Appellant : Shri S. Kandaswamy, Consultant For the Respondent : Shri P. Arul, Superintendent (AR) JUDGEMENT 1. There are two appeals being considered in this proceeding. The appeals arise from the diffe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat total amount of penalty payable in terms of this section shall not exceed (fifty percent of) the service tax payable under Section 76 of the Finance Act, 1994. 3. Aggrieved by the order, the appellant filed appeal before Commissioner (Appeals). Before the first appellate authority, the applicant had contested the tax liability as well as penalty imposed. Revenue also filed an appeal before the Commissioner (Appeals) contesting that the penalty imposed was not in conformity with the provisions of section 76 as was in force at the time of committing the offence. Commissioner (Appeals) decided both the appeals by separate orders. These two orders are presently challenged by appellant and both the orders are considered together in these a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... od would be adjusted in the subsequent period and for having paid excess amount, penalty should not be imposed and the discretion given under section 80 of the Finance Act, 1994 should be invoked and penalty should be waived. 5. Opposing the prayer, Ld. AR for Revenue submits that it is held by the Larger Bench of the Tribunal in the case of BDH Industries Vs CCE -2008 (229) ELT 364 (Tri.-LB) that assessee cannot take suomotu refund of excise duty paid. He argues that the statute prescribes a method for claiming refund which involves scrutiny regarding time bar and unjust enrichment and these two tests cannot be bypassed by taking suomotu refund. Further, he points out that before the adjudicating authority, the appellant had admitted the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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