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TMI Blog2019 (10) TMI 583X X X X Extracts X X X X X X X X Extracts X X X X ..... not apply. Appeal dismissed - decided against appellant. - EXCISE APPEAL No. 31083/2018 - FINAL ORDER No. A/30594/2019 - Dated:- 3-10-2019 - MR. P. VENKATA SUBBA RAO, MEMBER (TECHNICAL) None for the Appellant Shri C.Mallikharjun Reddy, Superintendent/AR for the Respondent. ORDER 1. This appeal is filed against Order-in-Appeal No. VIZ-EXCUS-002-APP-045 046-18-19, dated 14.05.2019. None appeared on behalf of the appellant despite the matter being listed in the cause list. It is seen from the records that appellant had also filed a Miscellaneous application seeking condonation of delay of 6 days in filing the appeal which was condoned vide Miscellaneous Order No. 30207/2019, dated 25.04.201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant paid the amount of service tax and interest prior to the issue of show cause notice. Penalties were also proposed to be imposed under sections 76, 77 78 of the Finance Act, 1994. After following due process, the original authority confirmed the demand and interest and appropriated the amounts already paid by the appellant towards the same. He also imposed a penalty under sections 77 78 of the Finance Act, 1994. However, he refrained from imposing any penalty under section 76 of the Act. On appeal, the first appellate authority upheld the order of the lower authority except to the extent of reducing late fee from ₹ 1,55,600/- to ₹ 55,600/-. The Department had also filed an appeal against the order of the original au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l, South Zonal Bench, Bangalore (hereinafter called as CESTAT) in Appeal No. 197/2004, dated 27-7-2004 [2004 (177) E.L.T. 937 (Tri.-Bang.)] wherein the Tribunal having confirmed the confiscation, has set aside the order of penalty imposed upon the respondent on the ground that the duty has been paid before show cause notice was issued and therefore no penalty could be imposed. The appeal has been admitted on 10-3-2006 for consideration of the following questions of law. (1) Whether the Tribunal has committed an error in setting aside the order, imposing penalty despite confirming the order of confiscation? (2) Whether the Tribunal has committed an error in setting aside the order of penalty and interest contrary to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held in Union of India v. Rajasthan Spinning and Weaving Mills reported in (2009) 13 Supreme Court Cases 448, that payment of differential duty made by the assessee before or after issuance of show cause notice does not alter liability for penalty and the imposition of penalty is mandatory if the conditions are satisfied. 7 . Accordingly the order of the Tribunal having confirmed the order of confiscation setting aside the order of penalty on the ground that duty has been paid before issuance of notice, cannot be sustained and the same is contrary to the decision of the Supreme Court. Hence we answer the substantial question of law in favour of the Revenue and against the assessee and pass the following order. ORD ..... X X X X Extracts X X X X X X X X Extracts X X X X
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