2007 (5) TMI 146

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....ellant in this case, is challenging the order of the Commissioner (Appeals), dated 25-8-2005. The Commissioner had observed that, the penal provisions of Section 76 of the Finance Act would be applicable in those cases where liability to Service Tax had been ascertained in accordance with Section 68 of the Act, on a person, but the assessee fails to pay the same. He, however, found that in the sub....

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....the Rules made thereunder, whereas Section 78 relates to penalty for suppression of the value of taxable service. Of course these two offences may arise in the course of the same transaction or from the same act of the person concerned. But we are of opinion that the incidents of imposition of penalty are distinct and separate and even if the offences are committed in the course of same transactio....

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....an assessee who is guilty of suppression deserves such sympathy. As such, we are of the opinion that the learned Single Judge was not correct in directing the 1st appellant to modify the demand withdrawing penalty under Section 76. Therefore, the judgment of the learned Single Judge, to the extent it direct the first appellant to modify Ext. PI by withdrawing penalty levied under Section 76, is li....

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.... lower authorities for their consideration and response as per law. We, therefore, set aside the impugned order of the Commissioner (Appeals) and remand the matter to him to enable him to decide afresh on the question of imposition of penalty under Section 76 in the light of the applicability of the provisions of Section 80 of the Act. While doing so, the grounds brought forth by the respondent/as....