TMI Blog2019 (5) TMI 161X X X X Extracts X X X X X X X X Extracts X X X X ..... ore the First Appellate Authority against the said order - the appeal was not on the merits of the matter but on technical ground that there was a computation error. Even assuming that the First Appellate Authority can rectify the computation error, it cannot be a case where the penalty can also be reduced more particularly when the order in original dated 22.01.2018 was accepted by the assessee and 25% of the penalty was paid within 30 days period thereby giving a protection to the assessee in terms of Clause 2 of second proviso. Therefore, considering the peculiar facts and circumstances of the case, we are of the opinion that the writ petition is untenable. The enhanced penalty cannot be demanded from the appellant/assessee. Though ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee to pay service tax to the tune of ₹ 6,46,595/- for the financial year 2007-08 and also proposed levy of interest and penalty. The assessee filed their reply contending that they were under the bondafide impression that they should pay service tax only after registration and that they have been doing so after March, 2008. They have deducted minimum exemption limit of ₹ 8,00,000/- from the total turnover and paid balance service tax of ₹ 78,207/- on the balance amount of ₹ 6,32,743/- for March, 2008. 3. Further they stated that the service tax payment will be made only if input credit is allowed. Considering the fact that the said company namely Hyundai Motors India was a large organization, the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 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 Authority held that the assessee was liable to pay service tax of ₹ 1,58,803/- and appropriated the amount of ₹ 1,50,130/- already paid by the assessee on 16.11.2017. The demand for interest on the said amount under Section 75 of the Act was confirmed and whatever already been paid was appropriated. The penalty of ₹ 1,58,803/- equivalent to that of the service tax payable was imposed. 5. The order in original is dated 22.01.2018. The assessee accepted the computation and whatever was the deficit payabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 4,77,542/- and also imposed equivalent penalty under Section 78. As against such order, the assessee has an alternative remedy by filing appeal before the CESTAT. Nevertheless, appellant chose to file a writ petition primarily on the ground that the show cause notice is defective and the defect is incurable and the defect has occurred on the very threshold and all subsequent proceedings are a nullity. Further it is contended that after the assessee had remitted 25% of the penalty in terms of Clau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 28.07.2016, participated in the de novo proceedings which resulted in order in original dated 22.01.2018. Admittedly, the assessee did not challenge the order in original dated 28.02.2016. It is the Revenue which went on appeal before the First Appellate Authority against the said order. As noticed above, the appeal was not on the merits of the matter but on technical ground that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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