2018 (3) TMI 25

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... confirmed the interest liability and also appropriated the interest already paid by the appellant-assessee and he has also imposed equal penalty under the second proviso to Section 78(1) of the Finance Act as the case may be, and also given liberty to pay 25% of the penalty imposed under Section 78 of the Finance Act. 2. Briefly the facts of the present case are that the appellant is a joint venture firm and is engaged in providing taxable output service under the category of construction of residential complex . Investigation was carried out by the officers of Anti Evasion and it was observed that the construction activities carried out are to be classified under construction of residential complex. The said service is liable to service .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... ion 77(1)(a) and penalty under Section 78 of the Finance Act. Further, the penalty of Rs. 18,75,418/- already paid by the appellant under Section 73(4A) was appropriated. The appellant also paid the balance penalty of Rs. 13,32,675/- and intimated the department that the entire amount of penalty is paid under protest. 3. Heard both the parties and perused the records. 4. Learned counsel for the appellant submitted that the impugned order is not sustainable in law as the same has been passed contrary to the provisions of Section 73(4A) of the Finance Act. She further submitted that the impugned order is contrary to the binding judicial precedent. She also submitted that the appellant during the investigation has paid the entire service tax .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... interest and penalty has been paid during the investigation and before the show cause notice, thereafter under Section 73(3) of the Finance Act, the Revenue should not have issued the show cause notice because the Revenue has not been able to bring on record any evidence to show that there was intention to evade payment of service tax. Further, we find that the penalty of Rs. 18,75,418/- was computed by the appellant as per Section 73(4A) and was paid. Therefore, there was no requirement to pay the additional penalty of Rs. 13,32,675/- which was paid by the appellant under protest after the adjudication order was passed by the Commissioner. Further, the case law relied upon by the appellant clearly hold that once the duty, interest and pena .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X