2014 (12) TMI 457

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....2008. Vide the said Order-in-Original service tax demand of Rs. 11,41,445/- was confirmed alongwith interest and penalties under Sections 77, 76 and 78 of finance Act 1994 were also imposed. The Commissioner (Appeals) held some of the services not leviable to service tax and in respect of some others no service tax was held to be leviable for a certain period. The Commissioner (Appeals) thus ordered that the Order-in-Original is sustained subject to such modifications as required in terms of the Order-in-Appeal. The Commissioner (Appeals) also held that penalty under Section 78 will be computed accordingly and adding that once penalty under Section 78 ibid is imposed, penalty under section 76 cannot be imposed, set aside the penalty under S....

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....-TMI-202397 (P & H) has observed that penalty under Section 76 may not be justified if penalty had already been imposed under Section 78. Similarly in the case of CCE Vs. Pannu Property Dealers, Ludhiana 2010-TMI-78899 (P & H), the Hon'ble Court has held that even if it is not correct to say that penalty under Section 76 can never be imposed after penalty under Section 78 is imposed, the appellate authority was within its jurisdiction not levy penalty under Section 76 having regard to the fact that penalty equal to service tax has already been imposed under Section 78 of the Finance Act 1994. In the light of the said judgments and as the appellants are based in Punjab, we are not in favour of allowing the Revenue's appeal. 3. As regards ....

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.... act which was wilfull for evading service tax. Therefore penalty under Section 78 ibid is clearly imposable. There is however force in the contention of the appellants that neither the original adjudicating authority nor the appellate authority gave than an option to pay (reduced) penalty of 25% of the Service Tax in terms of the proviso under Section 78. CESTAT in the case of CCE, Chennai vs. Zen Systems and Maintenance Pvt. Ltd. 2013 (7) TMI 603-CESTAT (Chennai) has held as under:                  Option to pay 25% of duty confirmed as penalty along with other dues within 30 days of the communication of the adjudication order for final closure of the matte....