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2010 (9) TMI 644

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..... lexion of the penalty imposed on the assessee was changed by the Commissioner when he substituted ‘Section 76’ for ‘Section 78’ and without notice to the party - Hence, The stay application (1/2005) stands allowed . Other application filed by the appellant cannot be allowed - This is also a stay application, but stay is prayed for against certain ongoing proceedings in relation to a batch of show-cause notices which were issued subsequently to the assessee - This application is, therefore, dismissed. - ST/89/2004 - 737/2010 - Dated:- 13-9-2010 - S/Shri P.G. Chacko, P. Karthikeyan, REPRESENTED BY : Shri K.K.G. Nair, Consultant, for the Appellant. Shri K.S. Chandrasekhar, JDR, for the Respondent. [Order per : P.G. Chacko, Me .....

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..... fied accordingly. The Commissioner also held the assessee liable to pay interest on tax and also to pay penalties. The penalties imposed by the Commissioner included one under Section 78 of the Act also. Subsequently, by a corrigendum, Section 78 was replaced with Section 76 without notice to the assessee. 2. One of the present applications is for stay of recovery. Presenting this application, the learned Consultant submits (a) that the impugned order was passed without jurisdiction inasmuch as the Commissioner was not lawfully authorized to undertake revision of the Deputy Commissioner s order (b) that the order passed by the Commissioner in relation to valuation of the service is beyond the scope of the show-cause notice inasmuch as .....

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..... We further note that the very complexion of the penalty imposed on the assessee was changed by the Commissioner when he substituted Section 76 for Section 78 and, that too, without notice to the party. Thus we come across many an infirmity in the proceedings of the Commissioner. We have no choice except to grant the relief of stay prayed for by the appellant. The stay application (1/2005) stands allowed. 5. The other application filed by the appellant cannot be allowed. This is also a stay application, but stay is prayed for against certain ongoing proceedings in relation to a batch of show-cause notices which were issued subsequently to the assessee. As such proceedings should be taken to their logical conclusion under the provision .....

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