2009 (3) TMI 85

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..... ined and the rest of the penalties are set aside - appeal allowed in part
Mr. P.G. Chacko, Member (Judicial) Shri A.H. Punwani, Advocate, for appellant Shri P.K. Agarwal, Authorised Representative (SDR), for respondent [Order]. - After examining the records, I find that the appellant was engaged in the business of rendering mandap keepers' service during the period of dispute (April 1999 to September 2002). This service was made exigible to service tax w.e.f. 1.7.1997. The appellant, however, did not pay service tax on the amounts collected by them for mandap keepers' service during the above period, nor did they even take steps for getting registered with the department. The service tax authorities, by a letter dated 4.9.2002, requir .....

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..... inance Act, 1994. The present appeal is directed against the appellate Commissioner's order. 2. The learned counsel has mainly argued that, as the service tax was paid with interest prior to the date of issue of the show-cause notice, any penalty was not liable to be imposed on the appellant under any of the above provisions. In this connection, he has relied on the Bombay High Court's decision in CCE vs. Gaurav Mercantiles Ltd. 2005 (190) ELT 11 (Bom.) and a plethora of orders by this Tribunal. The Hon'ble High Court held that where the entire duty liability was discharged prior to issuance of show-cause notice, no penalty was to be imposed on the assessee under Section 11AC of the Central Excise Act. Some of the decisions of the Tribunal .....

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..... suance of the show-cause notice. The final legal position is, therefore, that any penalty otherwise imposable under Section 11AC of the Act cannot be avoided on the ground that the duty amount was paid by the assessee prior to issuance of show-cause notice. I am of the considered view that this principle is applicable to the penalty under Section 78 of the Finance Act, 1994 inasmuch as both these provisions of law (Section 11AC of the Central Excise Act and Section 78 of the Finance Act, 1994) deal with penal liability of an assessee who has failed to discharge tax liability in comparable circumstances. However, I am not inclined to apply the above principle to the penalties under Section 76 and 77 of the Finance Act, 1994. Insofar as those .....

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