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2019 (11) TMI 60 - CESTAT ALLAHABADImposition of penalty u/s 76 and 78 of FA - appellant had only deposited a part amount before the issuance of SCN - HELD THAT:- The major part of the demand was deposited by the appellant prior to the issuance of the show cause notice. As such penalty required to be imposed under Section 78 was only to the extent of the amount not deposited by them. The Original Adjudicating Authority had given an option to the appellant to deposit 25% of the penalty within a period of one month from the date of passing of the order. As such deposit of 25% of the balance amount as deposited by the appellant, as penalty under Section 78 is appropriate. There is no dispute about the fact that the services provided by the appellants were ‘Works Contract Service’ and as such switch over to the said services for payment of service tax which was in the knowledge of the Revenue also cannot be held to be with any mala fide. The only lapse on the part of the appellant was that they did not get their registration certificate amended - However, appellant has already deposited duty plus 25% penalty on balance duty which was deposited after the order, the balance amount of penalty imposed upon them under Section 78 is set aside. Penalty u/s 76 of FA - HELD THAT:- It is well settled law that both the penalties i.e. under Section 76 and 78 cannot be imposed simultaneously - Penalty u/s 76 set aside. Appeal allowed in part.
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