2016 (12) TMI 480

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....ra, A.R. (Addl. Commissioner) ORDER Per Dr. D.M. Misra Heard both sides. 2. This appeal is filed against OIA No.112/2008(Ahd-III)CE/KCG/Commr(A), dt.24.09.2008, passed by Commissioner (Appeals), C.Ex. & S.Tax, Ahmedabad. 3. The learned Advocate Shri Dhaval Shah for the Appellant submits that even though main issue raised in the grounds of appeal relates to determination of duty, but....

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....osed under Section 78 of Central Excise Act subject to fulfillment of the conditions laid down therein. 4. The learned Authorized Representative for the Revenue reiterates the findings of the learned Commissioner (Appeals). 5. I find that Hon'ble Gujarat High Court in the case of Raval Trading Co. Vs Commissioner of Service Tax 2016 (42) STR 210 (Guj), at Para 10 and 11, has observed as ....

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.... the penalty is payable under Section 78, the provisions of Section 76 shall not apply. In other words, with the introduction of further proviso to Section 78 whenever penalty was imposed under Section 78, no further penalty could be levied under Section 76 of the Finance Act, 1994. 11. In view of the nature of this further proviso and the relevant position of the two statutory provisions....

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....ch situations. Thus further proviso to Section 78 made it explicit which was till then implicit." 6. Therefore, simultaneous penalty under Sec. 76 and Sec. 78 of Finance Act, 1994 cannot be imposed on the Appellant. Consequenlty, penalty imposed under Sec.76 is set aside. As regards the benefit of 25% of penalty on payment of duty and interest, the issue is covered by the decision of Hon'bl....