2019 (11) TMI 57

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....sions of the Act relating to the management, maintenance or repair service or MMR and commercial construction service to bring the service activities of the assessee to tax net. Service tax of Rs. 5,44,101/- was demanded as per the show-cause notice dated 08.06.2007 and an order was passed by the adjudicating authority determining the service tax of Rs. 4,05,258/- with penalty of Rs. 1,000/- under Section 77 and Rs. 4,05,258/- under Section 78 of the Finance Act, 1994 (for short 'Act, 1994') with interest. The said service tax of Rs. 4,05,258/- was ordered to be appropriated from an amount of Rs. 5,44,510/- deposited by the assessee. The said order was challenged by the assessee before the Commissioner inasmuch as the penalty levied unde....

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....e Act, 1944 are applicable in case where the Order-in- Original is challenged inasmuch as the levy of penalty and such levy of penalty is set aside by the Appellate Authority? 2. Whether under the facts and circumstances of the case, the Order-in-Original passed by the Respondent adjudicating authority merges with the Order-In-Appeal passed by the Commissioner of Central Excise(Appeals)? 7. It is beneficial to refer to the relevant provisions of Section 11B of the Act. Sections 11B(1) and 11B(5)(ec) of the Act read thus; "11B(1). Any person claiming refund of any duty of excise and interest, if any, paid on such duty may make an application for refund of such duty and interest if any, paid on such duty to the Assistant ....

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.....2010, whereby the order of penalty imposed under Section 78 of the Finance Act, 1994 has been set aside and penalty under Section 77 of the said Act has been confirmed. In terms of the said order dated 03.03.2010, the order dated 16.12.2008 has been merged. The refund application was filed by the assessee on 12.08.2010 subsequent to the order of the Appellate Authority dated 03.03.2010, which is well within the period of one year in terms of Section 11B (1) of the Act. The quantum of tax, penalty and interest has to be determined after adjudication by the original-adjudicating Authority. The amount of tax demanded as per the show-cause notice was deposited by the assessee. 10. The stand of the respondent-revenue that section 11B(5)(ec) ....