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2015 (11) TMI 614 - CESTAT KOLKATA

2015 (11) TMI 614 - CESTAT KOLKATA - TMI - Penalty u/s 76 & 78 - Business auxiliary services - Held that:- Commissioner has dropped the penalty under Section 78 of the Finance Act while reducing the confirmed demand. I find that while confirming the penalty under Section 76 of Finance Act, 1994, the Ld. Commissioner (Appeals) has observed that since the appellant had agreed to the short payment of service tax, therefore, the penalty under Section 76 of Finance Act, 1994 is justified. The Ld. Adv .....

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ice, I am of the view that the appellant be given a fair chance to raise the said plea before the Ld. Commissioner (Appeals) and the Ld. Commissioner should accordingly consider the same and decide the issue of imposition of penalty under Sec.76 of Finance Act,1994, accordingly. - Appeal disposed of. - ST/71430/2013 - Order No : FO/a/75494/15 - Dated:- 4-9-2015 - Dr. D.M. Misra, Judicial Member, J. For the Petitioner : Sri Arijit Chakraborty, Advocate For the Respondent : Sri A. Roy, Supdt. (A.R .....

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al amount of penalty imposed under Section 78 and penalty under Section 76 of the Finance Act, 1994. 3. Aggrieved by the said order, the appellant preferred an appeal before the Ld. Commissioner (Appeal). The Ld. Commissioner (Appeals) after recording reasons, modified the Order of the adjudicating authority by reducing the demand to the admitted liability of ₹ 5,49,538/- and confirmed the penalty under Section 76 of the Finance Act, 1994. Aggrieved by the imposition of penalty, under Sect .....

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laration in discharging the service tax liability, therefore, show cause notice should not have been issued as the amount had already been paid before the issuance of the show cause notice in view of specific provisions prescribed under Section 73(3) of Finance Act, 1994. In support of his contention, he has referred to the judgment of this Tribunal in the case of Electro World Vs. Commissioner of Central Excise, Chandigarh reported in 2010 (20) S.T.R. 210 (Tri.-Del.), Auto Transport Services Vs .....

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He submits that the plea of the appellant that no show cause notice is required to be issued under Section 73(3) of Finance Act, 1994 has not been taken before the Ld. Commissioner (Appeals). Accordingly, the Ld. Commissioner (Appeals) could not record any findings on such submission and its applicability to the facts of the present case. 6. In his rejoinder the Ld. Advocate for the appellant fairly agrees that the plea of applicability 73 (3) of the Finance Act,1994 was not taken up by the App .....

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