TMI Blog2015 (9) TMI 419X X X X Extracts X X X X X X X X Extracts X X X X ..... ng to ₹ 3,62,80,398/- and appropriate interest under Section 75 on the total amount confirmed under this order less the amount already paid and the differential penalty under Section 78 which is 25% of the Service Tax demand confirmed, less 25% of the Service Tax demand confirmed under the earlier order and already paid, then, the Assessee would get the benefit of reduced penalty. It is this computation which has been reflected in the operative order in para 14. That order has been complied with by the Assessee and as certified by the Commissioner at page 162 of the Appeal paper book. 25% of the amount of penalty as redetermined and recomputed, if deposited, the benefit would be available. In such circumstances, we do not think tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y to the substantive order of the Commissioner in that regard, styled as the order-in-original. 4. On the other hand, Mr. Sridharan appearing for the Assessee would submit that the issue raised in the present Appeal is completely academic. In terms of the order of the Commissioner of Service Tax, the Assessee has remitted and paid the sums and the certificate in the form of a communication dated 2nd November, 2012 Annexure J at page 162 is relied upon in that behalf by him. He has also relied upon the provision of Finance Act, 1994 as applicable at the relevant time. He submits that Section 78 and particularly second proviso thereto of the Finance Act, 1994 states that if the 25% of the total tax is imposed as penalty and that is paid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ged because of the direction to recompute or recalculate the tax liability. The minimum penalty that is required to be imposed is then referred to and what the Commissioner has held in para 12.3 is that a sum of ₹ 7.67 crores was confirmed as the Service Tax demand. The penalty is ₹ 10 crores in terms of the earlier order. The demand under de novo proceedings is now confirmed at ₹ 11.29 crores. Hence, considering the legal provision, the quantum of penalty based upon the amount sought to be evaded has been computed. The amount of penalty would vary between the tax demanded to double of the said amount. It depends upon the gravity of offence. There is a finding that the Assessee deliberately evaded the Service Tax. Therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th by the Assessee and as certified by the Commissioner at page 162 of the Appeal paper book. 7. In these circumstances, when all these events are noted, the Tribunal s order should be read as directing, firstly seeking compliance of the direction of recalculation and recomputation of the tax liability/demand, secondly the amount of penalty that could have been imposed in law when that demand is confirmed and thirdly, had the proviso been invoked, then, the benefit in terms of the proviso would be admissible and to what extent. Meaning thereby, 25% of the amount of penalty as redetermined and recomputed, if deposited, the benefit would be available. In such circumstances, we do not think that the Tribunal intended to impose any outer lim ..... X X X X Extracts X X X X X X X X Extracts X X X X
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