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CCCE & ST, Hyderabad Versus The Professional Express

2018 (2) TMI 943 - CESTAT HYDERABAD

Benefit of reduced penalty u/s 78 - non-discharge of service tax - extended period of limitation - Held that: - once the demand of service tax liability for the period 01.10.2005 to 31.07.2008 is demanded under the show cause notice dated 17.02.2011, it is obviously done by invoking the extended period. If there is a demand by invoking extended period for the payment of service tax, in my view, the provisions of Section 78 will have to be followed, giving relief of payment of reduced penalty - A .....

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Chandra Bose, Addl. Commissioner/AR for the Appellant Shri B. Venugopal, Advocate for the Respondent ORDER [ Order Per : Mr. M. V. Ravindran ] 1. This appeal is filed by Revenue against Order-in-Appeal No. 174/2012 (H-II)S.Tax, dated 23.11.2012. 2. Heard both sides and perused the records. 3. The relevant facts, after filtering out unnecessary details are, during the period 01.10.2005 to 31.07.2008, the Respondents herein had not discharged the service tax liability on an amount received as com .....

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uring the period in question as reimbursable expenses. Adjudicating authority did not agree with the contentions raised and confirmed the demands. Aggrieved by such an order, an appeal was preferred before the first appellate authority. First appellate authority upheld the Order-in-Original but directed the lower authorities to requantify the amount of service tax liability after considering opening balance and service tax paid. The said findings are in para No.11, which I reproduce: 11. However .....

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nder the proviso. 4. Revenue is not aggrieved by the above reproduced findings and the Bench was informed by both sides that the adjudicating authority has still not requantified the demand of service tax. 5. Ld. DR submits that they are aggrieved only by the findings recorded by the first appellate authority to extend the benefit of 25% of the total amount of tax payable after paying the part of the tax during investigation. He submits that there is no provision like that. 6. Ld. Counsel submit .....

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view and I am inclined to reduce the penalty imposed under section 78 of the Finance Act, 1994 to 25% of the total service tax amount under proviso to Section 78 of the Finance Act, 1994, provided the appellant pays the remaining payable service tax aong with the applicable interest and penalty within 30 days of receipt of the order as the lower authority has failed to give the option to the appellant as per the statutory provision. On failure on the part of the appellant to pay within 30 days .....

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se he would have had to pay full penalty amount, which is statutorily not leviable Since statutory authorities have themselves acted illegally and contrary to first proviso to Section 11AC ibid assessee cannot be faulted for challenging the order Failure of assessee to pay penalty amount within 30 days of adjudication order cannot be held against assessee Section 11AC ibid (paras 21, 22, 23, 24) Adjudication Penalty in its adjudication order the adjudicating authority under the Act should explic .....

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