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TMI Blog2015 (11) TMI 52X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee has paid excess amount in to as compared to total amount required to be paid as per the revenue. Therefore, I do not find any reason to demand any further amount form the assessee. - Appeal disposed of. - APPEAL NO. ST/87881, 88125/13 - Final Order Nos. A/2188-2189/2015-WZB/SMB - Dated:- 16-7-2015 - Mr. Ramesh Nair, Member (Judicial) For the Petitioner : Shri V.M. Chavda, Advocate For the Respondent : Shri Nair, Superintendent (A.R.) ORDER Per : Ramesh Nair These appeals filed by the assessee as well as Revenue against common Order-in-Appeal No. P-III/RP/113/2013 dated 16/4/2013 wherein Ld. Commissioner (Appeals) passed following order: The Order-in-Original No. PI/ADC/Service Tax/36/2011 dated 14/12/2011 passed by Additional Commissioner, Central Excise, Pune III Commissionerate is modified to the extent of imposition of penalty under Section 78 of the Act as under: * Imposition of penalty equal to 50% of the Service Tax amount not paid, i.e. penalty of ₹ 12,60,201/- under Section 78 of the Act is upheld. Further, as per second proviso to Section 78(1) of the Act, the Respondent was eligible for paying penalty equal to 25% of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id order-in-original. Aggrieved by the said order, Revenue filed appeal before the Commissioner (Appeals). Revenues appeal on the ground that it is improper and without any legal authority on the part of the Ld. Commissioner (Appeals) who given benefit of 50% penalty of tax amount under the amended provision of Section 78 on the ground that all the transaction of the assessee recorded in their books of account. Ld. Commissioner (Appeals) should not have given this benefit for the reason that period involved in the transaction is prior to amendment of Section 78 benefit of 50% penalty could not have been extended for period which is prior to amendment of Section 78. According to the Revenue Addl. Commissioner should have imposed of equal amount of penalty on the assessee under the unamended Section 78 of the Act, instead of the substituted Section 78 of the Act which was incorporated in the current budget. Ld. Commissioner(Appeals) considering ground of the Revenues appeal as well as ground made by the assessee in their cross objection passed the impugned order-in-appeal wherein penalty equal to 50% of the Service Tax amount not paid, i.e. penalty of ₹ 12,60,201/- under Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me after the amendment in Section 78, therefore unamended section shall be applicable. He further submits that as regard the adjudication order the adjudicating authority has ordered for penalty equal to 25% of the penalty imposable under unamended Section 78 i.e. 50% of the tax amount. He submits that as per the order of the adjudicating authority, the assessee has paid service tax interest and 25% of the Penalty (50% of the Service tax) within one month from the date of the adjudication order therefore the assessee has scrupulously following the adjudication order, made compliance as ordered. The revenue has not challenged before the Ld. Commissioner (Appeals) regarding the issue that adjudicating authority has demanded penalty equal to 25% of penalty (50% of the Service tax) and not 25% of the service tax. Therefore the order passed by the adjudicating authority wherein it was ordered that assessee is required to pay 25% of the penalty (50% of the Service tax) attained finality. Therefore the Revenue should not have raised this issue in their appeal before this Tribunal. He therefore submits that in these facts, the adjudication order should be upheld and the order of the Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enue is accepted regarding the 25% of the penalty of service tax dues of ₹ 25,20,402/- which comes to ₹ 6,30,100/- then the short fall of pealty shall be 310050 assessee on account of service tax paid an excess amount of ₹ 6,89,278/- which Ld. Counsel requested to adjust against short fall of the penalty amount i.e. ₹ 3,10,050/- with this adjustment the charge of the Revenue shall not sustain and the assessee shall be entitle to the benefit of 25% penalty of the service tax amount as provided even in the amended Section 78 accordingly the order of the Ld. Commissioner (Appeals) not correct and required to be set aside. 4. On the other hand, Shri. S.V. Nair, Ld. Asstt. Commissioner (A.R.) appearing on behalf of the Revenue submits that adjudicating authority has made apparent error in the order that despite there is no provision for penalty of 25% of the penalty amount whereas the statutory provisions stipulate that 25% of the service tax amount, therefore it is nothing but typographical error which needs to be corrected in spirit of the statutory provision for imposition of penalty. He further submits that as regard the adjudication order as well as the L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liable to pay a penalty, in addition to such service tax and interest thereon, if any, payable by him, which shall be equal to the amount of service tax so not levied or paid or short-levied or short-paid or erroneously refunded: Provided that where true and complete details of the transactions are available in the specified records, penalty shall be reduced to fifty per cent. of the service tax so not levied or paid or short-levied or short-paid or erroneously refunded: Provided further that where such service tax and the interest payable thereon is paid within thirty days from the date of communication of order of the Central Excise Officer determining such service tax, the amount of penalty liable to be paid by such person under the first proviso shall be twenty-five per cent. of such service tax: Provided also that the benefit of reduced penalty under the second proviso shall be available only if the amount of penalty so determined has also been paid within the period of thirty days referred to in that proviso: Provided also that in case of a service provider whose value of taxable services does not exceed sixty lakh rupees during any of the years covered b ..... 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