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TMI Blog2011 (9) TMI 737X X X X Extracts X X X X X X X X Extracts X X X X ..... t done w.e.f. 10-5-2008 by Finance Act, 2008 by adding a proviso under Section 78 - In this case the penalties imposed in the adjudication orders are based on quantum of duty worked out without following judicial principles and he could not have paid 25% of duty determined in the order-in-original - Appeal is allowed by way of remand - ST/515/2007 - ST/471/2011(PB) - Dated:- 9-9-2011 - Ms. Archana Wadhwa, Shri Mathew John, JJ. REPRESENTED BY : None, for the Appellant. Shri Rajinder Gupta, DR, for the Respondent. [Order per : Mathew John, Member (T)]. When the case was called out, none was present for the appellant. 2. On the previous occasion also, there was nobody to represent the appellant and the case was adjourne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (9) of Section 88 of the Act in respect of not less than 50 motor cabs. The appellant submitted that he had only one Maruti Van which was placed at the disposal of M/s. IFFCO and therefore, he cannot be considered to be falling under the scope of the Scheme. 5. Further the appellant submits that from April, 2005 onwards, he was eligible for exemption under Notification No. 6/2005-S.T., dated 1-3-2005 which provided exemption for small service provides whose value of turnover was upto Rs. 4 lakhs. Further the appellant submits that he is eligible for exemption under Notification No. 9/2004-S.T., dated 9-7-2004 which provided exemption to Rent-a-Cab Operator as was in excess of service tax calculated on value equivalent to 40% of the gross ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as not claimed by the appellant. In the matter of cum-duty benefit, he points out that it has been mentioned in the order in original that supplementary bills have been raised. In the circumstances, benefit of cum-tax value cannot be given. 8. Heard arguments on both sides. We do not agree with the arguments given by the DR and in the orders of the lower authorities that the appellant is not eligible for exemption under Notification No. 9/2004-S.T., dated 9-7-2004. Since the appellant was not registered with the Service Tax Department and not filing return, there was no question of availing any cenvat credit on inputs or capital goods for providing service. Since this is a fact which is very apparent from the facts and circumstances of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Finance Act, 1994. Basically penalties under Sections 76 and 78 are for the same offence which principle has been recognized by amendment done w.e.f. 10-5-2008 by Finance Act, 2008 by adding a proviso under Section 78. We are of the view that this benefit should be given to small service provider even if the period of dispute is prior to the said amendment. Therefore, we set aside the penalty under Section 76. Further it is also noticed that the adjudicating authority has not given the option to pay fine of 25% of the duty evaded to the appellant for closure of the matter. In this case the penalties imposed in the adjudication orders are based on quantum of duty worked out without following judicial principles and he could not have paid 25 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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