2017 (6) TMI 816

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....struction of Residential Complex Services. During a search operation conducted by the Department it was noticed that they had not registered themselves under Section 69 of the Finance Act, 1994 for collection and payment of service tax. During the period 16.06.2005 to 31.01.2006, they did not pay any service tax and a show-cause notice was served upon them demanding service tax along with cess and interest thereon and also proposing to impose penalties under Section 76, 77 and 78 of the Finance Act, 1994. The Additional Commissioner of Central Excise, Cochin vide Order-in-Original dated 09.11.2007 confirmed the demand of service tax and cess of Rs. 22,87,665/- (Rupees Twenty Two Lakhs Eighty Seven Thousand Six Hundred and Sixty Five only) a....

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....ed the provisions of Finance Act, 1994 and therefore penalty under Section 78 is also justified. On the other hand the learned counsel for the respondent defended the impugned order by submitting that there was no suppression of facts with intent to evade duty and it is the assessee who approached the Department seeking registration and on the same day the Department conducted the search operation and issued him a show-cause notice and thereafter the assessee paid the substantial portion of the duty along with interest. He further submitted that the learned Commissioner (Appeals) has given proper reasons for not imposing penalty on the assessee. In this regard, it is pertinent to mention relevant paras 7 & 8 of the decision of the Commissio....

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.... However, the appellant having discharged a substantial portion of tax liability before issue of notice, the notice itself, as per Section 73(3) should have been limited to the unpaid tax, if any, and thus restricting the penalty to such amount. Having failed to provide an acceptable computation of tax dues in the notice and owing to lack of examination of that aspect in the impugned order, quantification of penalty is not possible. Accordingly, the penalty under Section 76 is also set aside." 3.1. Further in support of his submission, the learned counsel for the appellant relied upon the following decisions: a) CCE Vs. M/s. First Flight Courier Ltd. 2011-TIOL-67-HC-P&H-ST b) CCE, Haldia Vs. Mittal Technopack P Ltd. 201....