2009 (11) TMI 685

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..... ommissioner. The learned Member (Judicial) of that Bench invoked Section 80 of the Finance Act and reduced the quantum of the above penalty to Rs. 50 lakhs. The amount of penalty imposed on the assessee by the Commissioner was Rs. 10 crores. In a dissenting order, the Member (Technical) of the regular Bench held that the penalty imposed by the adjudicating authority was sustainable. The Third Member who was appointed to resolve the conflict between the learned Members of the regular Bench on the penalty-related issue agreed with the view taken by the learned Member (Technical) of that Bench. In the result, in the final order of the regular Bench (majority decision), the assessee carried a penalty of Rs. 10 crores under Section 78 of the Act .....

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..... r pleaded by them, not even in the cross-objections filed before the Tribunal. It is a question of fact as to whether the assessee paid the Service tax with interest within the period stipulated under Section 78. This fact was never pleaded. Even though the amount of Service Tax, as it appears from the records, was paid prior to the passing of the Commissioner s order, this fact was not brought to the notice of the Commissioner. Neither this fact nor the factum of payment of interest on tax was brought to the notice of this Tribunal at any stage till final disposal of the appeal and cross-objections. In other words, when this Tribunal pronounced the final order in the Revenue s appeal, the crucial facts, which are presently brought on recor .....

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..... pplicable case law at the time of disposal of the appeal. In this scenario, none of the decision cited by the learned consultant for the assessee would make the assessee s position any better. 5. In the result, the application filed by the assessee stands dismissed. 6. The Revenue s application also touches the penalty-related issue. It is submitted that the Tribunal should not have taken a final view on the said issue while remanding the case to the lower authorities for de novo determination of the service tax liability. In this connection, the applicant has relied on the main part of Section 78 of the Finance Act, 1994. The prayer in this application is also to modify the final order. Learned Special Consultant for the Revenue has re .....

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