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2015 (7) TMI 273 - CESTAT BANGALORE

2015 (7) TMI 273 - CESTAT BANGALORE - 2015 (39) S.T.R. 609 (Tri. - Bang.) - Power of revisionary authority - Option to pay 25% service tax, interest and penalty - Held that:- The provisions relating to extension of option and availability of option in respect of Commissioner (Appeals) and the Tribunal cannot be applied to the order of the Commissioner and this is the ground taken by the Revenue. It cannot be said that this observation is not correct. - According to Section 84 of Finance Act 1994 .....

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e has two options when it is found that the decision or order is not acceptable. One is to file an appeal before the Commissioner (Appeals) and the other one is to take up revision as per the provisions of Section 84 of Finance Act 1994. There are two views possible. The first view is that the Commissioner is in fact just revising the order or modifying the order. When I see the order passed by the Commissioner in this case, it is seen that the Commissioner in the concluding portion has stated t .....

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e action taken by the Commissioner to extend the option cannot be found fault with. I consider the second view a better alternative view and therefore, I find no merit in the appeal filed by the Revenue - Decided against Revenue. - ST/1605/2010-SM - Final Order No. 20498/2015 - Dated:- 3-3-2015 - B S V Murthy, Member (T),J. For the Appellant : Mr R Gurunathan, AR For the Respondent : None ORDER Per: B S V Murthy: In this case, the Addl Commissioner vide order-in-original No. 4/2009 dated 06.02.2 .....

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of ₹ 16,51,993/- under Section 78 of Finance Act 1994. This was done in view of the fact that appellant had deposited an amount of ₹ 1,00,000/- prior to the issue of show cause notice and this was deducted by the Addl. Commissioner for arriving at the quantum of penalty payable by the assessee. 2. Commissioner took the view that according to the provisions of Section 73, when a person pays a part amount along with interest and 25% of the part amount towards penalty, then, only such p .....

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Commissioner in exercise of the powers vested in him under Section 84 of Finance Act 1994 and the proceedings initiated have culminated in enhancing of penalty to ₹ 17,51,993/-. The Commissioner also gave an option to the assessee to pay the reduced penalty of 25% of ₹ 17,51,993/- if the confirmed amount of service tax along with appropriate interest and reduced penalty are paid within 30 days from the date of communication of his order. 3. Revenue is aggrieved by this order. The gri .....

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for better appreciation): "SECTION 78. Penalty for suppressing value of taxable service - Where any service tax has not been levied or paid or has been short-levied or short-paid or erroneously refunded, by reason of - (a) fraud; or (b) collusion; or (c) wilful mis-statement; or (d) suppression of facts; or (e) contravention of any of the provisions of this Chapter or of the rules made thereunder with intent to evade payment of service tax, the person, liable to pay such service tax or err .....

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hin thirty days from the date of communication of order of the Central Excise Officer determining such service tax, the amount of penalty liable to be paid by such person under this section shall be twenty-five per cent of the service tax so determined: Provided further that the benefit of reduced penalty under the first proviso shall be available only if the amount of penalty so determined has also been paid within the period of thirty days referred to in that proviso: Provided also that where .....

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r the first proviso shall be available, if the amount of service tax so increased, the interest payable thereon and twenty-five per cent of the consequential increase of penalty have also been paid within thirty days of communication of the order by which such increase in service tax takes effect." 6. He relies on 3rd and 4th proviso and submits that only by appellate authorities, that too when there is an increase or decrease in the amount demanded, option to pay 25% of the increased amoun .....

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e Tribunal cannot be applied to the order of the Commissioner and this is the ground taken by the Revenue. It cannot be said that this observation is not correct. 8. According to Section 84 of Finance Act 1994 as it existed during the relevant time, The Commissioner can call for the records and after enquiry, pass an order as he deems fit in respect of orders passed by adjudicating authorities subordinate to him. The section also specifically provided that no order under Section 84 shall be pass .....

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