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TMI Blog2014 (7) TMI 977X X X X Extracts X X X X X X X X Extracts X X X X ..... , some of the officers were on election duty. 2. We find the reasons given for condonation of delay valid and acceptable. Accordingly, delay is condoned. 3. The learned counsel submits that the appellants have deposited the entire amount of service tax with interest and extra amount also. He also submits that the cum tax benefit has not been given at all. Further he also submits that penalty under Section 77 also should have been waived since penalty under Section 76 & 78 were waived by invoking the provisions of Section 80 of Finance Act, 1994. 4. Learned AR submitted that the claim of the appellant that they have deposited the entire amount is totally wrong. He submits that the appellant has deposited only Rs. 23 lakhs out of Rs. 59,00 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dings. Learned AR refused to accept that this observation would show that the Commissioner has accepted that the entire liabilities arising as a result of adjudication have been paid in the absence of a similar finding and order appropriating amount paid in addition to what has been appropriated (Rs.23 lakhs) in the order. We were unable to convince the learned AR that merely because the Commissioner did not appropriate the amount, it cannot be said that the amount has not been realized by the Government or has not gone into consolidated fund of Government of India. We make it clear that in our opinion if an assessee is able to show that he has paid the amount into Government treasury and produces copies of the challans and in the absence o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on in the order. This part of the reply read with observation of the Commissioner in paragraph 33 would show that the claim of the appellant that they have paid entire adjudication dues has been accepted by the Commissioner. Since cum tax benefit has not been extended, which means appellants have paid more tax what is due, we consider that penalty under Section 77 also has to be set aside in this case, we set aside the same. 6. The discussion above would show that there is nothing left in this case to be decided or considered. Therefore instead of merely passing an order waiving pre-deposit and granting stay and have one more appeal pending in the records of the trouble, we allow the appeal itself in spite of the fact that the learned AR a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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