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TMI Blog2015 (8) TMI 448X X X X Extracts X X X X X X X X Extracts X X X X ..... nbsp; ORDER Per R.K. Singh : Revenue is in appeal against order-in-appeal dated 25.5.2009 which upheld the service tax demand of Rs. 8,981/- along with interest and also penalty under Section 78 which was reduced to 25% of Rs. 8,981/- on the ground that demand of Rs. 8,981/- was paid before the issuance of Show Cause Notice but set aside the penalty under Section 76 & 77 on the ground that when penalty 78 has been imposed the penalty under Section 76 & 77 could not be imposed simultaneously. In addition the impugned order-in-appeal did not sustain the demand amounting to Rs. 92,998/- on the ground that the appellant had claimed that the amount on which d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s-objections the respondent has stated that it had deposited the service tax of Rs. 1,01,979/- and there was no wilful misstatement/suppression of fact on its part and therefore the penalty under Section 75, 76 and 78 be dropped. It also stated that demand of Rs. 92,998/- already set aside by the Commissioner (Appeals) should not be confirmed as the same was for providing construction of complex service which was not taxable during the relevant period. 4. We have considered the contentions of both sides. In this case, the Revenue is in appeal demanding service tax of Rs. 92,998/- under Real Estate Agent Service. While the Revenues contention that the respondent have not been able to show that the amount for which the said servi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority had not given the option of reduced mandatory penalty to the respondent and therefore as per the ratio of Gujarat High Court judgement in the case of Ratnamani Metals & Tubes Ltd. Vs. CCE 2013-TIOL-1124-HC-AHM-CX. the Commissioner (Appeals) was justified in granting that option but the Commissioner (Appeals) was required to put a condition that the said reduced penalty will have to be deposited within 30 days of the receipt of the order in appeal and by not putting that condition the Commissioner (Appeals) has certainly gone beyond the scope under Section 78 and therefore the reduction of mandatory penalty to 25% of demand without the condition of its deposit within 30 days is not sustainable. However as the option to pay r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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