2011 (7) TMI 992

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... did not levy penalty u/s 76, 77 and 78 of the Act following the view of Department in Order-In-Appeal No. 29-ST/RPR-II/2007, dt. 23.08.07 and Order-In-Original No.Commr/RPR/46/2008, dt. 16.05.08 by elaborate reason stated in para 6.1 to 6.3 of the Adjudication Order dt. 29.10.09. Revenue went in appeal against that order before Id. Appellate Authority. That Authority held that in so far as 5 nos. of G-Type quarters and 20 nos. of H-Type quarters are concerned, service tax was to be imposed and levied additional service tax demand of Rs. 2,51,648/-. So also he levied penalty of Rs. 1,000/- u/s 77 of the Finance Act, 1994 as well as penalty of Rs. 31,63,810/- u/s 78 of the said Act while waiving penalty u/s 76 of that Act. While levying tax,....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....he appellant's plea has considerable force. 3.2 It is noticeable that when the adjudicating authority proceeded basing on a circular, the appellant should have been given an opportunity by the Appellate Authority to lead defence against proposal for taxation of service relating to construction of aforesaid quarters. The appellate order is cryptic and unreasoned. Therefore, we consider it proper to send the matter back to the Appellate Authority who shall have opportunity to reexamine the issue of taxability in respect of aforesaid 5 nos. of G-Type quarters and 20 nos. of H-type quarters, granting fair opportunity of hearing to appellant and to adduce evidence, if any, for its defence. In the process of de novo adjudication on the above l....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....he extent of tax confirmed in adjudication in a mechanical manner. However, law having undergone change by judicial pronouncement in the case of Rajasthan Spilling Mills Ltd., the first appellate order in respect of penalty dropped by Adjudicating Authority need not be approved. But such averments of appellant was opposed by Revenue. 4.2 We noticed that ld. appellate authority waiving penalty u/s 76 of the Finance Act, 1994 imposed penalties u/s 77&78 of the said Act, to the extent indicated in his order while by an elaborate and reasoned order in terms of para 6.1 to 6.4, ld. Adjudicating Authority did not levy penalty finding no mala fides of the appellant to evade payment of tax. 4.3 Ld. first Appellate Authority proceeded on the b....