TMI Blog2018 (7) TMI 1124X X X X Extracts X X X X X X X X Extracts X X X X ..... ceedings can be initiated against the appellant in view of the judgment of the Hon'ble Supreme Court in the case of Shabina Abraham [2015 (7) TMI 1036 - SUPREME COURT] No penalty - refund allowed - decided in favor of appellant. - ST/489/2008-DB - 20807/2018 - Dated:- 11-6-2018 - MR. S.S GARG, JUDICIAL MEMBER And MR. P. ANJANI KUMAR, TECHNICAL MEMBER Shri M.S. NAGARAJA, Advocate For the Appellant Shri Madhupsharan, Asst. Commissioner (AR) For the Respondent ORDER Per: SS GARG The present appeal is directed against the impugned Order-in Revision No.2/2008 dt 11/06/2008 passed by the CCE, Belgaum. 2. Briefly the facts of the present case are that the appellant is a proprietary concern of late Shri M.B. Linga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ow-cause notice dt. 22/01/2008 under Section 84 of the Finance Act proposing to revise Order-in-original No.4/2006-ST(ADC) dt. 18/09/2006 passed by the Additional Commissioner to the extent of penalty not been imposed under Section 76 and to impose the same. Thereafter, the CCE passed the Order-in-Revision No.2/2008 Revision dt. 11/06/2008 imposing penalty of ₹ 7,79,897/- under Section 76 of the Finance Act, 1994. In the meantime, the Additional Commissioner under de novo adjudication as per the direction of the Commissioner (Appeals) vide order dt. 13/03/2007 confirmed the demand of service tax of ₹ 4,53,731/- along with interest for the period from April 1999 to November 2002 after considering that the service tax had already ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s:- i. Shabina Abraham Vs. CCE C [2015(322) ELT 372 (SC)] ii. CCE, Bangalore-III Vs. Shri Dhiren Gandhi [2012(27) STR 452 (Kar.)] iii. New Sharada Industries Vs. CCE [2017(347) ELT 180 (Tri. Bang.)] 4.2. He further submitted that when the demand of service tax stands set aside by the Commissioner (Appeals), then the question of imposing penalty under Section 76 of the Finance Act does not arise. It is his further submission that the appellant has deposited ₹ 4,53,731/-,towards service tax and ₹ 2,89,408/- towards interest totally amounting to ₹ 7,43,139/- vide challan dt. 22/09/2008 while filing the present appeal and the said amount is required to be refunded to the appellant since there is no liability to tax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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