TMI Blog2002 (12) TMI 647X X X X Extracts X X X X X X X X Extracts X X X X ..... penalty. 2. We heard Shri B.L. Narsimhan, learned Advocate for the appellants, and Shri Vikas Kumar, ld. Senior Departmental Representative for the Revenue. The learned Advocate submitted that initially a show cause notice, dated 29-3-1998 was issued to them to show cause as to why the penalty should not be imposed upon them under the Provisions of Section 77 of the Finance Act, 1994 for not filing of the Service Tax returns; that the Deputy Commissioner under Adjudication Order No. 18/99, dated 27-12-1999 dropped the proceedings against them in terms of the judgment in M/s. Laghu Udyog Bharti v. Union of India, [1999 (112) E.L.T. 365 (S.C) = 1999 (33) RLT 911 (S.C.)] under which the Supreme Court had struck down the provisions rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvice Tax assessment can be completed only after filing of the ST 3 returns and as such the present Order is not beyond the show cause notice dated 29-3-1998 inasmuch as unless and until the return is filed, there is nothing available with the Department to verify the services rendered on which the Service Tax could be assessed. 4. We have considered the submissions of both the sides. We find that the similar issue was involved in the case of M/s. Markfed Oil Allied (supra) wherein the tribunal has held as under : 4. We have considered the submissions of both the sides. Section 73 of the Finance Act, 1994 provides for issuing of a show cause notice to the assessee, if the value of taxable service has escaped the assessm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s was the view taken by the Tribunal in the case of Extrusion Process P. Ltd. v. Commissioner of Central Excise Bombay-II, 1994 (69) E.L.T. 144 (Tri). In the case of Dasaunda Singh, Waryam Singh, relied upon by the learned Advocate, Punjab Haryana High Court held that as the assessing Authority did not invoke its jurisdiction for levying the penalty, the revisionary Authority has no jurisdiction to invoke the revisionary power and remanded the case to the Adjudicating Authority with a direction to redecide the matter. In the present matter, as the notice was not issued under Section 73 of the Finance Act and it was issued only under Section 77 for imposing penalty on account of failure to file returns, the Commissioner cannot under the Re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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