2018 (12) TMI 306 – CESTAT MUMBAI – TMI – Benefit of reduced Penalty u/s 78 of FA – part payment of tax made before issuance of SCN and part payment with interest made after issuance of SCN – Held that:- It is settled position that the assesee is required to be given an option by the adjudicating authority whether he is willing to pay the duty with interest and 25% penalty within 30 days from the date of adjudication. Whenever such option is not given, the facility of paying reduced penalty by fulfilling the condition of deposition of the same with interest within 30 days (along with tax dues if any) should be granted.
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In the instant matter despite the fact that the Appellant has discharged the amount of Service Tax along with interest before passing the order by the Original Authority, the option about the reduced penalty has not been given to the Appellant – In the interest of justice the said option is extended to the Appellant and if the Appellant so desired he can deposit t
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uring the period from April, 2009 to March, 2013 the Appellant had received a total consideration of ₹ 79,55,029/- from service recipient, but he did not pay the Service Tax amounting to ₹ 1,95,692/- since he was not aware. When the department initiated enquiry, the Appellant obtained Service Tax Registration and made part payment of Service Tax amounting to ₹ 1,57,998/- before the issuance of Show cause cum demand notice dated 31.12.2013 and paid the remaining balance of Service Tax amount of ₹ 37,694/- along with interest of ₹ 10,178/- on 22.1.2014 i.e. after the issuance of show cause notice. Therefore there is no dispute that the entire service tax along with interest has been paid by the Appellant before the passing of the Adjudicating order. In the Order-in-Appeal also it has been specifically observed by the ld. Commissioner that there is no dispute that the Appellant has discharged the amount of Service Tax along with interest before passing the or
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ty within 30 days from the date of the adjudicating order or the impugned order, as the case may be. It is settled position that the assesee is required to be given an option by the adjudicating authority whether he is willing to pay the duty with interest and 25% penalty within 30 days from the date of adjudication. Whenever such option is not given, the facility of paying reduced penalty by fulfilling the condition of deposition of the same with interest within 30 days (along with tax dues if any) should be granted. 4. In the instant matter despite the fact that the Appellant has discharged the amount of Service Tax along with interest before passing the order by the Original Authority, the option about the reduced penalty has not been given to the Appellant. Since such option has not been given by any of the authorities below, therefore in the interest of justice, I am inclined to extend the said option to the Appellant and if the Appellant so desired he can deposit the reduced pena
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