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C.C.E., CUS. & S.T., Visakhapatnam-I Versus Apex Communications

Entitlement for refund - 25% of penalty imposed paid in respect of adjudication order which was waived by the Commissioner (Appeals) in its order- Commercial or industrial construction service - Department submitted that once the assessee exercises the option of payment of 25% of the penalty, he deemed to have accepted the demand of Service tax made under Proviso to Section 73 of the Finance Act, 1994 and penalty under Section 78 ibid and therefore the assessee cannot take recourse of filing app .....

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on the basis of assessment of tax liability of the Central Excise Officer no show cause notice for differential amount of Service tax or interest can be demanded after one year except where there is a case for invoking suppression of facts, misdeclaration, fraud, etc.

Further, there is no law laid down anywhere that the matter has to be considered as settled when an assessee pays the tax demanded with interest and penalty in accordance with law. It is only provided in the case of Se .....

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(T) Shri S. Ila, AR, for the Appellant. None, for the Respondent. ORDER Nobody is present on behalf of the respondent. Heard the learned AR. 2. The facts of the case briefly are that the appellant is engaged in the activity of civil construction, erection and commissioning services and is also registered with the Department for the works contracts services since 2007 but providing services since 2004. The Department gathered intelligence that the appellant was evading payment of Service Ta .....

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n amount of ₹ 11,96,549/-. As regards the duty paid, the appellant requested that the remaining amount may be adjusted to the commercial or industrial construction service. With respect to the commercial or industrial construction service, the demand worked out to ₹ 7,99,038/-. After adjustment with the excess duty paid, the liability worked out to ₹ 50,963/-. Demand in respect of works contract service was worked out to ₹ 24,38,810/- after deducting the payment of the ap .....

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he appellants have paid 25% of the penalty imposed under Section 78 within one month of the adjudication order and had pleaded before the Commissioner (Appeals) that they may be held entitled for refund of the same. The obvious conclusion is that Commissioner (Appeals) held that they are entitled to refund. Revenue is in appeal against this order. 4. The learned AR would submit that the Commissioner s observation that penalty under Section 78 can be waived is not correct. It is submitted on .....

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ng appeal for setting aside the penalty. Therefore, the Commissioner (Appeals) ought to have taken these aspects into consideration while deciding the issue and therefore the Commissioner has erred in setting aside the penalty under Section 78 of the Finance Act, 1994. 5. Even though, I took the help of both the A.Rs present in the Court and my own knowledge of law, I could not find any legal provision which provides that once an assessee pays the entire demand with interest and penalty to .....

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