9911796707
TMI Blog2009 (11) TMI 247X X X X Extracts X X X X X X X X Extracts X X X X ..... he imposed penalty of Rs. 1,000 under section 77 of the Act and a penalty of Rs. 2,06,848 under section 78 of the Act. The Commissioner (Appeals) by impugned order taking note of the fact that the entire amount of Service tax and interest has been paid, set aside the penalty under section 76 holding that penalty under section 76 and penalty under section 78 are mutually exclusive. He also reduced the penalty under section 78 to 25 per cent of the Service Tax evaded. Held that- setting aside the penalty under section 76 by the Commissioner (Appeals) cannot be held to be unreasonable. Further, the Respondent has admittedly paid 25 per cent of the penalty within one month from the date of the order of the original Authority. Therefore, the wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clusive. He also reduced the penalty under section 78 to 25 per cent of the Service Tax evaded. 4. Ld. SDR submits that it is a clear case of non-payment of Service Tax knowingly by the assessee citing the ground that their association was contesting the tax liability and was taking up the matter with the higher Authorities. Under these circumstances, imposition of penalty under section 76 for the delay in payment of Service Tax and imposition of penalty under section 78 for wilful, suppression of facts are justified especially because the period is prior to amendment to section 78 on 10-5-2008 by which, it was clarified that if the penalty is payable under section 78 the provisions of section 76 was not to be applied. He also relies on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s been set aside by the Tribunal. 6. I have carefully considered the submissions from both sides. The tax liability is not in dispute and the same has been paid along with interest. The Commissioner (Appeals) relying on the decision of the Tribunal in the case of Financers (supra) held that once penalty imposed under section 78 of the Act, no penalty was imposable under section 76 of the Act. It has not been shown any Appeal has been filed against the said order of the Tribunal and stay granted. The decision of the Hon'ble High Court of Kerala in the case of Krishna Poduval (supra) dealt the issue whether sections 76 and 78 can be invoked to the same transactions. In the said decision, the Hon'ble High Court has also taken note o ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
