9911796707
TMI Blog2015 (5) TMI 636X X X X Extracts X X X X X X X X Extracts X X X X ..... CESTAT NEW DELHI (LB)] in favour of the assessee. As a matter of judicial discipline we follow the above decision and reject the appeal of the Revenue on this matter The amount of ₹ 2,75,255/- is 25% of the penalty of ₹ 11,01,017/- which was set aside by Commissioner (Appeals). - Therefore penalty is not imposable under Section 78 because show-cause notice was not required to be issued under Section 73(3) as no mens rea for wilfull suppression of facts has been established. Therefore, refund of ₹ 2,75,255/- should be granted. As regards the interest of ₹ 1,94,084/- on the service tax demand of ₹ 9,42,920/-, we have already set aside the demand. Therefore the interest of ₹ 1,94,084/- paid by appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8377; 43,681/- and ₹ 1,14,416/- respectively on the above issues, confirmed recovery of interest, imposed equivalent penalty (total ₹ 11,01,017/-) under Section 78 with option to pay 25% of the penalty in terms of proviso to Section 78 and penalty of ₹ 1000/- under Section 77. The Commissioner (Appeals) set aside the demand and corresponding interest as far as first issue is concerned as well as total penalty under Section 78. He confirmed the remaining duty, interest and penalty under Section 77. 4. As far as the first issue is concerned, Commissioner (Appeals) held that the service was provided prior to the issue of Notification 1/2006-S.T. dated 01.03.2006 which brought in the condition of addition of value of materi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aside. 4.2 On the other two issues, Commissioner (Appeals) upheld the demand with interest but set aside the penalties. 5. In their additional grounds in miscellaneous application, Revenue prayed that simultaneous imposition of penalty under Section 76 and 78 was discontinued with effect from 10.5.2008 in terms of Section 78(5). The period involved in the instant case being 2005-07, the adjudicating authority had erred in imposing penalty under Section 76. Revenue relies on CESTAT judgement in the case of Aakruti Cable Network vs.CCE Jaipur 2009 (15) STR 338 and ruling of the Hon ble High Court of Kerala in the case CCE vs. Krishna Poduval - 2006 (1) STR 185 (Ker.). We find that the appropriate forum to agitate this point was the C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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