TMI Blog2015 (12) TMI 548X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. Hence, the extended period of limitation would be invoked in this case. Central Excise officers during the visit had detected the non-payment of the tax. So, the imposition of penalty is warranted. However, considering the overall facts and circumstances of the case, in our view, the imposition of penalty under Section 78 of the Finance Act, 1994 is sufficient. We agree with the submission of Learned Advocate that the Adjudicating Authority had not given the option to pay penalty 25% of the tax alongwith the entire amount of tax and interest, within the specified period. So, they are entitled to get such option under Section 78 of the Act 1994. - we modify the impugned order in so far as the demand of Service Tax alongwith interest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmed the demand of Service Tax of ₹ 58,47,888/- and ₹ 18,94,659/- alongwith interest and imposed penalty under Section 78 of the Act 1944 and various provisions of the Act 1994 on M/s NISS and M/s NISS(M) respectively. 4. After hearing both the sides and on perusal of record, we find that the Learned Advocate fairly submits that leviability of the Service Tax on Security Agency Services on the appellants is not in dispute. It is submitted that the demand of service tax for the period April 1999 to 11.3.2004 by show cause notice dated 29.6.2004 is hit by limitation. It is also submitted that the quantification of the demand of tax is not proper to the extent the appellants are eligible for cum-tax benefit and the reimbursable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Larger Bench of Tribunal in the case of Sri Bhagavathy Traders (supra). But, there is a force in the submission of the Learned Advocate that the cum-tax benefit should be extended while determining the demand of duty. The Learned Advocate submits that the appellant submitted the break-up of amount actually received by them, which was not examined by the lower authorities. The Adjudicating Authority observed that during the material period the demand of tax would be determined on the actual receipt of the value of taxable services. It is submitted by the Learned Advocate that they have already prepared the statement on this issue which may be allowed to place before the Adjudicating authority. In our considered view, the appellant should ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d interest, within the specified period. So, they are entitled to get such option under Section 78 of the Act 1994. 9. In view of the above, we modify the impugned order in so far as the demand of Service Tax alongwith interest is upheld. The penalty imposed under Section 78 is also upheld and the other penalties are set aside. The Adjudicating authority is directed to determine the demand of tax after extending the cum-tax benefit and the appellant would submit the statement of the amounts actually received by them. The Learned Advocate undertakes to submit the statement within thirty (30) days from the date of receipt of this order. The appellant is entitled to pay penalty 25% of tax alongwith the entire amount of tax and interest with ..... X X X X Extracts X X X X X X X X Extracts X X X X
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