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2015 (11) TMI 1417 - CESTAT ALLAHABAD

2015 (11) TMI 1417 - CESTAT ALLAHABAD - 2016 (41) S.T.R. 63 (Tri. - All.) - Levy of Penalty u/s 76, 77 & 78 - Assessee did not declare the facts in their ST-3 returns nor paid the service tax - whether in applying the provisions of Section 78 proviso, the amount of service tax to be considered for calculation of 25% of penalty should exclude the service tax paid before issue of show cause notice - Held that:- The appellant was aware of the obligations under the Service Tax law because initially .....

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re is no denial. - Decided against assessee. - Appeal No. ST/1541/2010 - Final Order No. A/70016/2015 - Dated:- 18-9-2015 - P. S. Pruthi, Member (T) And S. S. Garg, Member (J) For the Appellant : Shri Shubham Agrawal, Adv For the Respondent : Shri Rajeev Ranjan, Jt. Commissioner (AR) ORDER Per P S Pruthi This appeal arises from the impugned of Order-in-Appeal No: 460/ST/APPL/KNP/2010 dated 10/09/2010 passed by the Commissioner of Customs & Central Excise (Appeals), Kanpur. 2. The facts are t .....

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confirmed along with interest. Equivalent penalty of ₹ 4,26,667/- was imposed under Section 78. Penalties were also imposed under Sections 76 and 77. 3. The contention of the appellant is that they had deposited ₹ 3,27,787/- before the issue of the show cause notice and the same was appropriated under the order-in-original. They deposited ₹ 98,880/-after the issue of order-in-original. However, this amount as well as 25% of this amount as penalty was deposited within 30 days of .....

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determined under Section 73(2) is ₹ 98,880/- and, therefore, penalty payable will be only 25% of ₹ 98,880/-. The appellant relied on the Hon'ble High Court of Allahabad decision in the case of H.M. Singh & Company vs. Commissioner of Customs, Excise & Service Tax (2014) ISIE-191 All. (HC). 4. Heard both the sides and considered the submissions. The issue to be considered is whether in applying the provisions of Section 78 proviso, the amount of service tax to be consider .....

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he legal provisions is the total service tax which is payable. Even if a part of the service tax is paid before the issue of show cause notice, the fact remains that the same has to be determined under the legal provisions and confirmed under the adjudication order. If some amount of tax is paid before the issue of show cause notice it does not mean that it is not to be assessed or determined under an order. However, the same may be appropriated under the order. The adjudication order refers to .....

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