TMI Blog2014 (12) TMI 40X X X X Extracts X X X X X X X X Extracts X X X X ..... Selvam and G. Chockalingam, JJ. Shri S. Renganathan, Advocate, for the Appellant. Shri R. Aravindan, Advocate, for the Respondent. JUDGMENT This Civil Miscellaneous Appeal has been directed against the Final Order No. 241/2012 in Appeal No. ST/221/2011, dated 13-3-2012 by the CESTAT, Chennai. 2. The respondent herein has issued a show cause notice dated 15-10-2009, wherein a specific demand has been made to the effect that the appellant/assessee should pay service tax, interest together with penalty under Sections 76 and 78 of the Finance Act, 1994. The demand made in the show cause notice has been accepted by way of passing Order-in-Original No. 13/ADC/ST/2010, dated 5-5-2010. The Order-in-Original has been challenge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 78 and confirmed by the Commissioner of Central Excise (Appeals), the appellate Tribunal has no power to decide that the assessee is liable to pay penalty under Section 76 and further the assesses has already paid service tax together with interest and for invoking Section 80 of the said Act, the Appellate Tribunal has not given any opportunity and further in Section 80 of the said Act, it has been specifically stated to the effect that if any assessee has shown sufficient reason, penalty cannot be imposed. Under the said circumstances, the entire order passed by the Appellate Tribunal is erroneous and the same is liable to be set aside. 5. The learned counsel appearing for the respondent/department has contended that even though in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Court has to look into the second point raised on the side of the appellant/assessee. The second point is that as per Section 80 of the Finance Act, 1994, if sufficient reason has been shown by an assessee, he is not bound to pay penalty. 11. As rightly pointed out on the side of the appellant/assessee, such opportunity has not been given by the Appellate Tribunal for coming to a conclusion as to whether the appellant/assessee is entitled to get such kind of benefit/exemption. Since sufficient opportunity has not been given for getting such kind of exemption, this Court is of the view to set aside the final order passed by the CESTAT and remit the matter to its file. 12. In fine, this Civil Miscellaneous Appeal is allowed without ..... X X X X Extracts X X X X X X X X Extracts X X X X
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