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2016 (10) TMI 458 - CESTAT MUMBAI

2016 (10) TMI 458 - CESTAT MUMBAI - 2016 (45) S.T.R. 338 (Tri. - Mumbai) - Levy of penalty - delay in payment of service tax - appellant had collected the service tax but not deposited the same it time, but deposited before issuance of show cause notice - Held that:- the decision of the Hon'ble High Court [2016 (2) TMI 174 - GUJARAT HIGH COURT] has been given in circumstances where the appellant had not filed the requisite periodical returns and the fact of non-payment of service tax came to lig .....

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7 is upheld. - Decided partly in favor of assessee. - Appeal No. ST/458, 459/12 - A/90611-90612/16/STB - Dated:- 27-9-2016 - Shri M.V. Ravindran, Member (Judicial) And Shri Raju, Member (Technical) Mr. Patankar, Consultant for the appellant Shri A.B. Kulgod, AC (AR) for the respondent ORDER Per Raju The appellant s were issued show-cause notices for default in payment of duty. The facts of the first case are as follows:- a. Default period : First half of the Financial year 2005-2006 (October .....

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yment of balance amount with interest during Oct. to Dec 2008 The delay for the Q- Apr 2008 June 2008: 6 months and the delay for Q- July 2008 Sept.2008 : 3 months d. Show-cause notice F.no. VGN (30) CCS/012/STC/PI/IV dated 25.03.2010 2. The case was adjudicated by the lower authorities. The original adjudicating authority confirmed the demand of duty and interest and imposed penalty and appropriated the amounts already paid. The notice also imposed penalty under Section 76 and 77. However, no p .....

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ingredients for the invocation of Section 78 of the Finance Act, 1994 are not present in the instant case and therefore penalty under Section 78 cannot be imposed. He argued that since they had paid the duty voluntarily before issue of show-cause notice the proceedings against them should have been concluded in terms of Section 73(3) of Finance Act, 1994. He further prayed that benefit of waiver of penalty under Section 78 by invocation of section 80. He also sought option to pay reduced 25% as .....

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ival submissions. Ld. counsel has relied on the decisions of Vista Infotech 2010 (17) STR 343 wherein identical circumstances the Tribunal had held that when service tax is paid before issue of show-cause notice and it is attributable to financial crunch, benefit of Section 73(3) could be allowed. We find that revenue has relied on decision of Hon'ble High Court of Gujarat in the case of IWI Crogenic Vaporization System (supra) wherein the High Court has observed as under:- 5. It can thus be .....

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