TaxTMI 
TaxTMI 
2009 (7) TMI 478
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....ty distribution transformers of different capacitates without obtaining registration and without payment of Service Tax. Show cause notice was issued proposing to demand Service Tax along with interest and impose penalties. The Adjudicating Authority, vide Order-in-Original No.31/2006 dated 15-11-2006 confirmed demand of Service Tax of Rs.10,88,069/- and Education Cess of Rs. 9,784/- along with interest and imposed penalty of Rs.200/- per day or @ 2% per month whichever was higher under Section 76, Rs.1,000/- under Section 77 and Rs.10,97,853/- under Section 78 of the Finance Act, 1994. Ag grieved by this order, the appellants had filed an appeal and the Commissioner of Central Excise (Appeals), Mangalore vide Order-in-Appeal No.167/2007-C.....
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....s held that extended period cannot be invoked against them. He submits that this specific plea was taken be fore the learned Commissioner inasmuch as to say that penalty imposed by the Adjudicating Authority under Section 78 is not at all imposable for the reason that there was no fraud, misstatement, collusion or suppression of facts. As the learned Commissioner (A) in his earlier order dated 27-3-2007 has already set aside these findings, he would submit that penalty is not at all imposable on the appellant either under Section 76 and Section 77. 4. The learned JCDR on the other hand would submit that appellant had not discharged the Service Tax liability as has been pointed out by the Adjudicating Authority and having not discharged the....
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.... penalty imposed under Section 78, I find that the learned Commissioner (A) in his first order dated 27-3-2007 had set aside the demand of Service Tax for the period 1-7-2003 to 15-6-2005 coming to a conclusion that there was no suppression of facts, fraud, mis-statement or collusion, as there was a correspondence between the appellant and the Superintendent/Authorities. On a specific query from the Bench, the learned Counsel submits that there was no appeal filed by the revenue against this Commissioner (A)'s order dated 27-3-2007. It would indicate that the said order has attained finality and hence, there cannot be any demand prior to 16-6-2005. The provisions of Section 78 can be invoked only when there is suppression of facts, fraud, c....