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TMI Blog2012 (1) TMI 4X X X X Extracts X X X X X X X X Extracts X X X X ..... and Service Tax Appellate Tribunal (for short, „Tribunal‟) in appeal No.ST/656/2007 in the case of Bas Engineering Pvt. Ltd. 2. Having heard the counsel for the parties, the following two substantial questions of law are framed:- "(i) Whether the Tribunal was right in deleting/quashing penalty under Section 78 of the Finance Act 1994 on the ground that the show cause notice did not grant any opportunity of rebuttal to the respondent-assessee to defend the penalty under the said Section? (ii) Whether the Tribunal was in right in deleting the penalty imposed under Section 76 and 78 of the Finance Act 1994?" 3. The respondent -assessee was/is an authorized dealer of passenger cars. The cars were sold to customer from their show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pportunity of rebuttal granted to the appellant to defend the penalty imposed which is apparent from the show cause notice available at page 18 of the appeal folder. We are satisfied that there was no proposition in the show cause notice for penalty under Section 78. Therefore, the appellant succeeds on the count of levy of penalty under Section 78 of the Finance Act, 1994 and such penalty is hereby set aside." 7. The contention of the learned counsel for the appellant is that the two corrigendums dated 12.12.2006 and 16.05.2007 were issued calling upon and asking the respondent-assessee to give its explanation as to why the penalty under Section 78 of the Finance Act should not be imposed. This factual aspect has been overlooked and ignor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Tribunal in accordance with law. First question of law mentioned above is, accordingly answered in favour of the Revenue and against the assessee and on the said aspect the matter is remitted to the Tribunal for a fresh decision. 12. With regard to the second question, we are inclined to restore the matter back to the Tribunal. It is apparent that the respondent-assessee has invoked Section 80 of the Act and submitted that there was a reasonable cause and, therefore, penalty should not have been imposed. The factual aspects, explanation offered etc. have not been dealt with and adverted to. Reference has been made to the decision in Auto World (supra) but the factual matrix, the period of default, conduct etc. have not been examined ..... X X X X Extracts X X X X X X X X Extracts X X X X
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