TMI Blog2018 (5) TMI 1518X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant during those two years have not filed returns, which clearly shows that they are liable to penalty. The penalty imposed u/s 78 but giving an option of penalty of 25% to the appellant if the same is paid within one month from the date of receipt of this order - appeal allowed in part. - ST/21508/2014-SM - Final Order No. 20403/2018 - Dated:- 12-3-2018 - Shri S.S. Garg, Judicial Member Shri Yeshwanth, Consultant Vijaya Kumar Shetty Chartered Accountant - For the Appellant Shri Madhupsharan, Asst. Commissioner(AR) - For the Respondent ORDER Per : S.S. Garg The present appeal is directed against the impugned order dt. 21/03/2014 passed by the Commissioner(Appeals) whereby the Commissioner(Appeals) has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lowing the due process, the original authority has confirmed the demand of ₹ 34,45,121/- and also appropriated the same amount paid by the appellant. The original authority has also appropriated the interest amount of ₹ 5,54,130/- already paid against the demand of interest and also imposed penalties under Rule 7C and imposed equal penalty under Section 78 of the Act Being aggrieved by the said order, the appellant filed appeal before the Commissioner(AppeaIs) who rejected the appeal of the appellant and upheld the penalty under Section 78 of the Act. 3. Heard both sides and perused records. 4. The learned consultant for the appellant submitted that he is not contesting the tax demand and interest which the appellant alr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gments:- i. EVO Tech Pvt. Ltd. Vs. CCE ST, Raipur [2017(11) TMI 92 CESTAT New Delhi.] ii. Oriental Facility Vs. CST Mumbai [2017(9) TMI 422 - CESTAT Mumbai] iii. NT Paul and Co. Vs. CCE ST, Cochin [2017(11) TMI 832 CESTAT, Bangalore.] 5. He also submitted that since the adjudicating authority did not give the option, this Tribunal can exercise the power for granting immunity from 75% penalty by extending option as provided under Section 78. 6. On the other hand, the learned AR defended the impugned order and submitted that it is a case of collection of service tax and not paying the same to the Government which clearly shows the mala fide Intention to evade the service tax. He further submitted that this Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is Tribunal in the case of Oriental Facility (supra) to show that adjudicating authority has not given the option of reduced penalty of 25% in the adjudication order and prayed that the option may be given to the appellant at this stage. In the said order, the Division Bench has observed in para 5 as under:- 5. .. .. .As regard the submission of the Ld. Counsel regarding the option of 25% penalty not given by the adjudicating authority, we find that adjudicating authority must give option in the impugned order for 25% penalty. This issue has been considered by the Board Circular No. 208/07/2008-CX-6 dated 22-5-2008 and clarified that the adjudicating authority must give an option of reduced penalty of 25% penalty in the adjudicating ..... X X X X Extracts X X X X X X X X Extracts X X X X
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