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TMI Blog2007 (5) TMI 146X X X X Extracts X X X X X X X X Extracts X X X X ..... -5-2007 - [Order per : TV. Sairam, Member (T)]. - None represented the Respondent despite notice. The Revenue, who is the appellant in this case, is challenging the order of the Commissioner (Appeals), dated 25-8-2005. The Commissioner had observed that, the penal provisions of Section 76 of the Finance Act would be applicable in those cases where liability to Service Tax had been ascertained i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 76 is for failure to pay service tax by the person liable to pay the same in accordance with the provisions of Section 68 and the Rules made thereunder, whereas Section 78 relates to penalty for suppression of the value of taxable service. Of course these two offences may arise in the course of the same transaction or from the same act of the person concerned. But we are of opinion that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ever, no circumstances are either pleaded or proved for invocation of the said Section also. In any event we are not satisfied that an assessee who is guilty of suppression deserves such sympathy. As such, we are of the opinion that the learned Single Judge was not correct in directing the 1st appellant to modify the demand withdrawing penalty under Section 76. Therefore, the judgment of the learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nterest of justice, we consider it necessary that this prayer of the Respondent/assessee is specifically brought to the notice of the lower authorities for their consideration and response as per law. We, therefore, set aside the impugned order of the Commissioner (Appeals) and remand the matter to him to enable him to decide afresh on the question of imposition of penalty under Section 76 in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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