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TMI Blog2011 (10) TMI 179X X X X Extracts X X X X X X X X Extracts X X X X ..... le operator. He got himself registered as a service provider under the Finance Act. Thereafter he was remitting the service tax payable for the amounts he received from the customers. In pursuance of an enquiry by the department, he gave information regarding the number of subscribers, the amount charged, amount collected and the period for which it is collected and also stated that he would pay the differential tax after quantification by the department as he has not maintained any accounts. It is thereafter a communication was sent as per Annexure 'D' pointing out that he is liable to pay Rs. 81,786 of service tax Rs. 1,318 on Education Cess and Rs. 8,647 Interest, in all a sum of Rs. 91,751. On receipt of the said communication he prompt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order the assessee is before us. 3. Learned counsel for the assessee submitted that when once the duty and interest is paid even before issue of show-cause notice by virtue of sub-section (3) of section 73 of the Act, authorities could not have initiated proceedings much less levied penalty and therefore, he submits, the order passed by the Tribunal requires to be set aside. 4. Per contra learned counsel for the revenue submitted that sub-section (3) of section 73 of the Finance Act has no application to a case of suppression of facts, wilful mis-statement and therefore, the assessing authority as well as the Tribunal were justified in not granting the benefit to the assessee under sub-section (3) of section 73 and levying penalty. 5. F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4). Therefore, the contention of the assessee that he is not liable to pay penalty as he has paid the differential duty with interest before issue of show-cause notice is unsustainable. At the same time it is now well settled that the liability cannot be imposed both under sections 76 and 78. Therefore, in this case the liability to pay penalty is only under section 78. In fact the proviso to section 78 makes it very clear that if penalty is payable under this section, the proviso to section 76 shall not apply. Thereby no penalty could be imposed both under sections 76 as well as 78. Therefore, in this case the penalty is to be construed under section 78. To that extent the appeal succeeds. Once section 78 is attracted, proviso to section 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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