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TMI Blog2011 (2) TMI 466X X X X Extracts X X X X X X X X Extracts X X X X ..... ay 25% penalty as envisaged in proviso to Section 11AC of the Central Excise Act - It has been settled in several decisions of the Tribunal including the one relied upon by the consultant that even during the period prior to the amendment of Section 78 w.e.f. 10-5-08, no separate penalty under Section 76 is warranted when there is a penalty under Section 78 - Decided in favour of the assessee - S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x amount of Rs. 3,59,168/- on 27-9-08. Show Cause Notice dated 12-11-08 was issued proposing confirmation of service tax, recovery of interest and imposition of penalties. The original authority passed as order dated 22-4-10, confirming the demand of service tax and ordering recovery of interest of Rs. 44,033/-. He imposed a penalty of Rs. 5,000/- under Section 77, imposed penalty under Section 76 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be extended. Since there was failure to pay tax, waiver of penalty under Section 76 was not warranted. 5. Ld. Consultant submits that when penalty under Section 78 is sustained, the question of sustaining separate penalty under Section 76 is not justified as held by the Tribunal in the case of AR.AS.PV.PV. Motors v. CCE, Salem reported in 2010-TMI-77459-CESTAT and 2010 (18) S.T.R. 722 (Tri.- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roviso to Section 11AC of the Central Excise Act. In these circumstances, in the light of the decision of the Hon'ble High Court, in the case of K.P. Pouches Pvt. Ltd. (cited supra), the Commissioner (A) was right in extending the benefit of concessional penalty in terms of proviso to Section 11 AC. The department has challenged the setting aside of penalties under Section 76 and Section 77. Where ..... X X X X Extracts X X X X X X X X Extracts X X X X
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