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TMI Blog2019 (5) TMI 161X X X X Extracts X X X X X X X X Extracts X X X X ..... g the order in appeal passed by the Commissioner (Appeals II) dated 28.09.2018 in an appeal filed by the Revenue questioning the correctness of the order in original dated 22.10.2012. The respondent/department issued show cause notice dated 12.10.2012 alleging that the appellant/assessee has not paid service tax in the year 2007-08 inspite of the turnover of Rs. 52,00,000/-. It is not in dispute that the assessee registered themselves with the department under the head "Business Auxiliary Services" and have been remitting service tax from 2008 onwards. The show cause notice called upon the assessee to pay service tax to the tune of Rs. 6,46,595/- for the financial year 2007-08 and also proposed levy of interest and penalty. The assessee fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that they are entitled to claim exemption upto Rs. 8,00,000/- and by order dated 28.07.2016 set aside the order passed by the Adjudicating Authority to the said extent and remanded the matter for fresh consideration with regard to the computation of the service tax payable. With regard to the interest and penalty which has been imposed under Section 78 of the Act, the appellate authority held that the sum requires to be requantified after the adjudicating authority takes a fresh decision on remand. The penalty of Rs. 5,000/- under Section 77(2) of the Act was set aside. Pursuant to the remand, the Adjudicating Authority accepted the stand of the assessee and passed the order in original dated 22.01.2018. In the said order, the Adjudicating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed at re-quantified taxable value. However, the appeal was on the ground that while demanding service tax instead of demanding Rs. 4,77,542/-, the department demanded Rs. 1,58,803/-. The assessee objected to the appeal petition on several grounds that the showcause notice dated 12.10.2018 has not specified the classification of taxable service under which the demand is proposed and in the absence of valid ground to sustain the levy of service tax, the imposition of penalty under Section 78 would be wholly illegal and arbitrary and requested for setting aside the penalty. 7. The Appellate Authority rejected the contentions raised by the assessee demanded service tax of Rs. 4,77,542/- and also imposed equivalent penalty under Section 78. As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned standing counsel for the respondent and with the consent of either side, the appeal is taken up for disposal. 10. It is true that the appellant had an effective alternative remedy by way of an appeal before the CESTAT as against the order passed by the First Appellate Authority dated 28.09.2018. But the assessee chose to file a writ petition challenging the manner in which the show cause notice was issued and contending that there is a serious flaw which would render all subsequent proceedings as untenable. 11. In our considered view, the learned Single Bench was right to an extent that such a plea could not be raised by the assessee at this distance off time especially when the assessee accepted the order in appeal dated 28.07.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is untenable. It is needless to state that the finding should not be treated as precedent but had been rendered based on peculiar facts and circumstances of the case. 13. Furthermore, the enhanced demand of service tax confirmed by the Appellate Authority vide order dated 28.09.2018 has been accepted by the assessee and the same was confirmed. 14. Thus, for the above reasons, we are of the considered view, that the enhanced penalty cannot be demanded from the appellant/assessee. Though the appellant had filed the writ petition challenging the order in appeal dated 28.09.2018 in its entirety, we restrict the relief only to that of penalty as quantified in the said order to the tune of Rs. 4,77,542/- and the said penalty stands deleted. In ..... X X X X Extracts X X X X X X X X Extracts X X X X
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