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TMI Blog2011 (8) TMI 609X X X X Extracts X X X X X X X X Extracts X X X X ..... N Panda: Moving the stay application ld. advocate appearing on behalf of appellant submits that the adjudication ended with demand of service tax of Rs.29,12,162/- and that has been discharged. While Ld. Adjudicating Authority invoking provision of section 80 of the Finance Act, 1994 (hereinafter referred to as "the Act") did not levy penalty u/s 76,77 and 78 of the Act following the view of Department in Order-In-Appeal No.29-ST/RPR-II/2007, dt. 23.08.07 and Order-In-Original No. Commr/RPR/46/2008, dt. 16.05.08 by elaborate reason stated in para 6.1 to 6.3 of the Adjudication Order dt. 29.10.09, Revenue went in appeal against that order before ld. Appellate Authority. That Authority held that in so far as 5 nos. of G-Type quarters and 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are unable to find whether the appellant at the appellate stage was put to notice to explain as to satisfying of the conditions of section 65(91a) of the Act to bring him to the charge. Therefore, dispensing pre-deposit, we dispose this appeal since the amount of service tax involved is Rs.2,51,614/- and the appellant's plea has considerable force. 3.2. It is noticeable that when the adjudicating authority proceeded basing on a circular, the appellant should have been given an opportunity by the Appellate Authority to lead defence against proposal for taxation of service relating to construction of aforesaid quarters. The appellate order is cryptic and unreasoned. Therefore, we consider it proper to send the matter back to the Appellate A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of section 80 by Adjudicating Authority was unwarranted. Following the Apex Court 's decision in the case of Dharmendra Textiles 2008 (231) ELT (SC), ld. Appellate Authority imposed penalty to the extent of tax confirmed in adjudication in a mechanical manner. However, law having undergone change by judicial pronouncement in the case of Rajasthan Spilling Mills Ltd., the first appellate order in respect of penalty dropped by Adjudicating Authority need not be approved. But such averments of appellant was opposed by Revenue. 4.2. We noticed that ld. appellate authority waiving penalty u/s 76 of the Finance Act, 1994 imposed penalties u/s 77 78 of the said Act, to the extent indicated in his order while by an elaborate and reasoned order ..... X X X X Extracts X X X X X X X X Extracts X X X X
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