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TMI Blog2009 (6) TMI 412X X X X Extracts X X X X X X X X Extracts X X X X ..... I am of the considered view that the penalty under Section 78 is not sustainable - As regards the penalty imposed under Section 76, we find that service tax collected from customers and appellant aware of liability, Section 73(3) on waiver of SCN not applicable - penalty is imposable under Section 76 - However I reduce the penalty imposed @ 200 per day to to Rs. 100/- per day during period of failure to make payment - ST/630/2008 - 727/2009 - Dated:- 10-6-2009 - Shri M.V. Ravindran, Member (J) Shri B.S. Janpathi, Consultant, for the Appellant. Ms. Sudha Koka, SDR, for the Respondent. [Order]. - This appeal is directed against the Order-in-Appeal No. 267/2008-ST dated 30-8-2008, passed by the Commissioner of Central Excise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed an appeal before the Commissioner (Appeals). The Commissioner (Appeals) also upheld the order of imposition of penalties. Hence this appeal. 4. The leaned Consultant appearing for the appellants submits that they have discharged the service tax liability along with interest and penalty of Rs. 1000/- under Section 77 of the Act. He submits that they are challenging only penalty imposed under Section 76 and 78 of the Act. It is the submission that the appellant had no intention to evade payment of service tax. He submits that the proprietrix of the appellant was ill during the period, hence discharge of service tax got delayed. He submits that in the facts and circumstances of the case, the penalty imposed under Sections 76 and 78 is to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lty, a minimum of Its. 100/- per day and a maximum of Rs. 200/- per day during period of failure to make payment, provided that the total amount of the penalty payable in terms of this section shall not exceed the service tax payable. From the record, it is seen that the appellant had been collecting the service tax from their customers. It would mean that they were aware that the service tax is liable to be discharged within the period in accordance with law. Hence I am of view that in the absence of any contrary evidence, penalty is imposable under Section 76 of the Finance Act, 1994. I find that, in the impugned order, the adjudicating authority has imposed penalty of Rs. 200/- per day this seems to be excessive. In view of the facts and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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