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TMI Blog2009 (6) TMI 84X X X X Extracts X X X X X X X X Extracts X X X X ..... alty of Rs. 1,29,171/- on the assessee under ‘Section 76 read with Section 78’ and this penalty also came to be sustained by the Commissioner (Appeals) – held that - The show-cause notice had proposed to impose separate penalties under Sections 76, 77 and 78. The original authority imposed a penalty of Rs. 1,29,171/- under ‘Section 76 read with 78’ of the Finance Act, 1994 and this decision was up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nally disposed of at this stage. Accordingly, after dispensing with pre-deposit, I take up the appeal. 2. The issue before the lower appellate authority was whether storage of empty containers fell within the ambit of the "storage and warehousing services". The appellate authority held this issue against the assessee and accordingly sustained the order of the lower authority, confirming demand o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... They have also claimed the benefit of a circular of the Board, which has been construed to say that no show-cause notice should be issued for imposing penalty where a duty or tax has been paid immediately on being pointed out by the department. Significantly, the appellant has not challenged the penalty on the ground that the lower authorities chose to impose a composite penalty under two differen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ession, misstatement, contravention of provisions of law with intent to evade payment of duty etc. are the various elements of mens rea mentioned in the text of Section 78. The lower authorities ought to have applied their mind to these features of the penal provisions. 5. For the aforesaid reason, I set aside the orders of both the lower authorities and allow this appeal by way of remand, direc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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