TMI Blog2023 (3) TMI 497X X X X Extracts X X X X X X X X Extracts X X X X ..... HELD THAT:- The adjudicating authority even though invoked the extended period but by invoking Section 80 set aside the penalty by considering the fact that the appellant had admittedly paid the entire service tax along with interest before issuance of show cause notice. It is further found that the non payment of service tax was detected only during audit of the appellant s books of accounts, therefore, the transaction on which the service tax demanded were very much entered in the books of the appellant s account. The adjudicating authority has rightly set aside the penalty under Section 76 78 of the Finance Act, 1994 - there are no infirmity in the order of the adjudicating authority - appeal allowed - decided in favour of appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Section 73 (3) of Finance Act 1994 which has been admitted by the adjudicating authority. According to which no show cause notice should have been issued since the appellant had paid the duty and interest before issuance of show cause notice. Without prejudice, he further submits that as regard penalty under Section 76 the same cannot be imposed once penalty under Section 78 was imposed as held in various judgments. In support of his arguments, he placed reliance on the following judgments:- M/S. POPULAR VEHICLES SERVICES LTD-2010-TIOL-776-CESTATBANG WEST MINISTER INTERNATIONAL (P.) LTD-11STT 157 (NEW CEGAT) FILCO TOURS-2006 (1) STR 269 (TRI- DEL.) UNITED COMMUNICATION, UDUPI-2011-TIOL-802-HC-KAR-ST PRO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 is not sustainable, hence, the same is set aside. As regard, the penalty under Section 78, I find that the adjudicating authority even though invoked the extended period but by invoking Section 80 set aside the penalty by considering the fact that the appellant had admittedly paid the entire service tax along with interest before issuance of show cause notice. I have further found that the non payment of service tax was detected only during audit of the appellant s books of accounts, therefore, the transaction on which the service tax demanded were very much entered in the books of the appellant s account. Therefore, considering the overall fact and circumstances of this case, I am of the considered view that the adjudicating authority ..... X X X X Extracts X X X X X X X X Extracts X X X X
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