2013 (5) TMI 701

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..../3/2008. Consequently a show cause notice was issued to them for recovery of S. Tax amounting to Rs.61,566/-, Ed.Cess Rs.1,231/- and S&HEd. Cess Rs.615/-.Besides, penalty has been proposed under Section 76 and 78 of the Finance Act, 1994. The entire amount of Service Tax has been paid by the applicant before issuance of show cause notice i.e. on 13/2/2009. The show cause notice was issued to them on 28/10/2009. The Adjudicating Authority confirmed the demand and imposed penalty equivalent to Service Tax under Section 78 of the Finance Act 1994 only. Aggrieved, the Revenue filed the appeal before the Commissioner of Central Excise (Appeals) for non imposition of penalty under 76 of the Finance Act. The Ld. Commissioner (Appeal) dismissed the....

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....rity and upheld by the Ld. Commr.(Appeal). In support of his order, the Ld. Commr.(Appeal) had recorded the reasoning as below: "I have carefully gone through the case records and considering the gravity of the case I decide to dispose off the appeal on the basis of available documents without giving further hearing in the case. The moot issue to be decided in the instant appeal is as to whether imposition of penalty under Section 76 of the Act is mandatory when penalty under Section 78 of the Act is there in the Order in Original? Section 76 of the Act provides imposition of penalty for failure of service tax in respect of SCN issued within stipulated one year time and section 78 of the Act provides imposition of penalty for SCN invokin....