TMI Blog2015 (8) TMI 448X X X X Extracts X X X X X X X X Extracts X X X X ..... e penalty under Section 78 was imposed, it is settled law that during the relevant period the penalty under Section 76 and 78 were not mutually exclusive. Primary adjudicating authority had not given the option of reduced mandatory penalty to the respondent and therefore as per the ratio of Gujarat High Court judgement in the case of Ratnamani Metals & Tubes Ltd. Vs. CCE [2013 (12) TMI 1397 - GUJARAT HIGH COURT]. the Commissioner (Appeals) was justified in granting that option but the Commissioner (Appeals) was required to put a condition that the said reduced penalty will have to be deposited within 30 days of the receipt of the order in appeal and by not putting that condition the Commissioner (Appeals) has certainly gone beyond the sc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... med pertained to the service of construction of residential complexes which was not taxable during the relevant time as construction of residential complex service became taxable from 16.6.2005. The period of demand is 2001-2002 to 2004-2005. The Revenue is in appeal on the ground that : (i) The Commissioner (Appeals) has not given any basis as to how the said amount relates to construction of complex service as the respondent had not given any evidence to that effect; (ii) The observation of the Commissioner (Appeals) that penalty under Section 76 and 78 could not be imposed simultaneously was not legal and proper as during the relevant period both these penalties were not mutually exclusive and; (iii) Penalty under Section 77 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssioner (Appeals) related to construction of residential complex, the fact remains that the Revenue has not been able to show that the said amount pertained to provision of Real Estate Agent service. It needs to be mentioned at this stage that the onus to establish that the amount pertained to Real Estate Agent service is on Revenue and that onus admittedly has not been discharged by Revenue. Therefore, Revenues appeal with regard to service tax demand of ₹ 92,998/- is not sustainable. As regards, setting aside of penalty under Sections 76 and 77 because the penalty under Section 78 was imposed, it is settled law that during the relevant period the penalty under Section 76 and 78 were not mutually exclusive. However, Punjab Harya ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e respondents following the ration of Gujarat High Court judgement in the case of Ratnamani Metals Tubes (supra) it is to be granted by CESTAT. 5. In view of the foregoing, we make the following order: (a) Revenues appeal seeking confirmation of demand of ₹ 92,988/- is not sustained. (b) Revenues appeal with regard to imposition of penalty under Section 77 and equal mandatory penalty under Section 78 is upheld and the penalty is restored to ₹ 1000/- under Section 77 and ₹ 8,981/- under Section 78 of the Finance Act. However, penalty under Section 78 will be 25% of ₹ 8,981/- if the same along with the demand of ₹ 8,981/-and interest, if any leviable is paid within 30 days of the receipt of this order ..... X X X X Extracts X X X X X X X X Extracts X X X X
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