2010 (3) TMI 127

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....-payment was detected by the Department on 27.4.07. A show cause notice dt.21.4.08 was issued to the Appellant for recovery of short paid service tax amounting to Rs.2,94,044/- alongwith interest and also for imposition of penalty on them under Section 76,77 and 78. The Appellant, however, had paid the entire amount of service tax alongwith interest prior to issue of show cause notice. The show cause notice was adjudicated by the Asstt. Commissioner vide order-in-original dt.7.5.09 by which the entire service tax demand alongwith interest was confirmed and besides this, penalty of equal amount of Rs.2,94,044/- was imposed under Section 78 of Finance Act,1994 and penalty of Rs.200/- per day starting from the first day after the due date till....

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....e Department well before the issue of show cause notice, the penal proceedings by issue the show cause notice were not warranted and that in case when penalty has been imposed under Section 78, separate penalty under Section 76 was not warranted. He, therefore, pleaded that the penalty under Section 76 may be set aside. 2.2 Shri S.K.Bhaskar, learned DR, pleaded that during the period of dispute, there was no specific provision in the Finance Act,1994 providing that penalty under Section 76 as well as under Section 78 cannot be imposed simultaneously; that Hon'ble Kerala High Court in the case of Asstt. Commissioner of Central Excise vs Krishna Poduval reported in 2006(1)STR.185(Ker.) has held that incidents of imposition of penalty u....

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....gwith interest. In view of these circumstances, I hold that the Commissioner (Appeals)'s findings regarding suppression of fact with intent to evade payment of service tax are correct and accordingly, the penalty on the Appellant under Section 78 has been correctly imposed. The Appellant are not even challenging the penalty under Section 78. The Appellant, however, challenge the penalty under Section 76 on the ground that since the penalty has been imposed under Section 78, separate penalty under Section 76 is not called for. However, this view is not correct in view of judgments of Hon'ble Kerala High Court in the case of Asstt. Commissioner of Central Excise vs Krishna Poduval(supra) and Bajaj Travels Ltd. vs CCE, Chandigarh(supra....