2008 (9) TMI 136

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..... eedings shall be deemed to be concluded – penalties u/s 76 and 77 are not sustainable
Shri P.K. Das, Member (J) Shri Vikrant Kang, Advocate, for the Appellant. Shri A.K. Rastogi, DR, for the Respondent. [Order]. - The relevant facts of the case, in brief, are that the Appellants were engaged in providing services under the category of "Real Estate Agent" services. It was found that the Appellants did not pay the tax. for the period October, 2004 to December, 2005 and also failed to obtain registration. The Appellants immediately deposited the tax upon detection by TR-6 Challan dated 10-2-2006. A show cause notice dated 21-4-2006 was issued to confirm the demand of tax and to appropriate the amount as deposited by them and also to impo .....

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..... twenty-five per cent of the service tax specified in the notice or the service tax so accepted by such person within thirty days of the receipt of the notice. (2) The Central Excise Officer shall, after considering the representation, if any, made by the person on whom notice is served under sub-section (1), determine the amount of service tax due from, or erroneously refunded to, such person (not being in excess of the amount specified in the notice) and thereupon such person shall pay the amount so determined: Provided that where such person has paid the service tax in full together with interest and penalty under sub-section (1A), the proceedings in respect of such person and other persons to whom notices are served under sub-section .....

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..... time of its issuance. In the present case, the new provisions of Section 73(1A) of the Act is in existence at the time of issuance of show cause notice. So, Section 73(1A) of the Act is applicable herein. In view of that, I find that the Applicant deposited the tax, interest and penalty of 25% of the tax within 30 days of the receipt of the show cause and in terms of first proviso to Section 73(2) of the Act where such person has paid the service tax in full together with interest and penalty of 25% of the tax within 30 days of the receipt of the notice, the proceedings shall be deemed to be concluded. Hence, the penalties under Sections 76 and 77 on the Appellant are not sustainable and accordingly, it is set aside. The appeal is allowed w .....

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