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TMI Blog2016 (1) TMI 653X X X X Extracts X X X X X X X X Extracts X X X X ..... visions. Reproducing the provisions of Section 78, the first appellate authority should have extended the benefit of payment of reduced penalty to the appellant herein, as it is undisputed that the appellant had already discharged the service tax and interest thereof. In view of this we find that the appellant needs to be extended the benefit of discharge of penalty of an amount of equivalent to 25% of the service tax liability ascertained in this case. We do so. Appellant shall discharge the penalty under Section 78 as imposed by the first appellate authority within 30 days of the receipt of certified copy of this order and report the same to the adjudicating authority and the first appellate authority; failing which, appellant shall b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthority after following due process of law rejected the appeal filed by appellant and allowed the appeal filed by Revenue. Operative portion of the said order is as under:- In view of above, I allow the appeal filed by the department and reject the appeal filed by the assessee. The captioned order-in-original is therefore, modified as under:- i) Under proviso to Section 73(1) of Finance Act, 1994 the service tax amount of ₹ 9,51,094/- and Ed. Cess of ₹ 19,022/- are confirmed and recoverable from the assessee. Since the service tax and Ed. Cess were already paid, the same are appropriated. ii) Under Section 75 of Finance Act, 1994, interest on above confirmed amount is chargeable. iii) Since demand pertains t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oundation for the telecom towers which is nothing but a civil structure or part thereof. In our considered view the definition of the construction services as per Section 65(30a) of the Finance Act, 1994 and as amended from time to time would cover the services rendered by the appellant. 6.1 As regards the submission made by the learned Consultant that the services would fall under the category of Erection, Commissioning and Installation Services from 01.05.2006 we find that the said services include the structures were pre-fabricated or otherwise. In the case in hand appellant has not erected any structures but were engaged in laying foundation for towers of the telecom services providers. Accordingly, the services as rendered by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t applied to the period in question in this appeal reads as under:- Provided for that where said service tax and interest payable thereon is paid within 30 days it is from the date of communication of order of the Central Excise officer determining such service tax, amount of penalty liable to be paid by such person under the first proviso shall be 25% of such service tax . 78.2 .. Provided that in case where the service tax to be payable is increased by the Commissioner (Appeals), the Appellate Tribunal or, as the case may be, the Court, then, the benefit of reduced penalty under the second proviso to sub-section (1), shall be available, if the amount of service tax so increased, the interest payable thereon and twenty ..... X X X X Extracts X X X X X X X X Extracts X X X X
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