TMI Blog2019 (5) TMI 1145X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1994. We find that Tribunal in the case of REMAC MARKETING (P.) LTD. VERSUS COMMISSIONER OF SERVICE TAX, KOLKATA [ 2008 (10) TMI 88 - CESTAT, KOLKATA ] has taken a view that when duty and interest have been paid before the issuance of show-cause notice, penalty need not be imposed. The learned Commissioner in the capacity of the Revisionary Authority had no reason to review the original order seeking imposition of penalty under Sections 76 and 78 of the Finance Act, 1994 - appeal allowed - decided in favor of appellant. - ST/462/2009-DB - Final Order No. 20434/2019 - Dated:- 15-5-2019 - MR. S.S GARG, JUDICIAL MEMBER And MR. P. ANJANI KUMAR, TECHNICAL MEMBER Mr. S. Vittal Shetty, Advocate For the Appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ought to change the nature of their services from Tour Operator to Rent-a-Cab Scheme Operator Service . The appellants paid the differential service tax and interest demanded well before the issuance of show-cause notice. As there was no mala fide intention on their part and as the mistake, if any, was only due to the understanding of the provisions of taxation, the original authority has not imposed penalties under Section 76 and 78 correctly. It was not correct on the part of the learned Commissioner to review the order particularly when no mala fides could be attributed to them and due to the fact that they have paid the duty and interest well before the issue of show-cause notice. He relied upon the following cases: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re should not be double penalty for which following the earlier decision of the Tribunal in the aforesaid two cases cited by the Ld. Consultant, we waive the penalty imposed under Section 78 of that Act consequently. 4.1 We further find that the issue has been held by the Hon ble High Court of Karnataka in the case of CST, Bangalore vs. Motor World: 2012 (27) S.T.R. 225 (Kar.) as under: 31. In the matter of collection of tax, if there is any order, which is prejudicial to the interest of the revenue, the same is liable to be corrected. It is also possible that such orders may be contrary to the statutory provision in an enactment. When the statutory provisions are inserted in the enactment prescribing a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainly cannot interfere with the discretionary order passed by the assessing or adjudicating authority which has been vested with the power and discretion to impose such penalty. 5. In view of the above, we find that the learned Commissioner in the capacity of the Revisionary Authority had no reason to review the original order seeking imposition of penalty under Sections 76 and 78 of the Finance Act, 1994. Having regard to the circumstance of the case, confirmation of the same is not maintainable. Therefore, the impugned order is liable to be set aside. In the result, the appeal is allowed. (Operative portion of the Order was pronounced in Open Court on 15/05/2019) - - TaxTMI - TMITax - Service Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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