TMI Blog2011 (10) TMI 163X X X X Extracts X X X X X X X X Extracts X X X X ..... the order. Therefore liability payable is restricted to 25% only. - CEA No.12/2011 - - - Dated:- 15-10-2011 - Shri N. Kumar and Shri Ravi Malimath, JJ Represented by: Shri Cherias Runnoose, Advocate for AKB Associates, Advocate for Appellant Sri Jeevan J Neeralgi, Advocate for Respondent JUDGEMENT This appeal is by the assessee challenging the order passed by the Tribunal holding that the assessee is liable to pay penalty even though he has paid duty and interest prior to the issue of show cause notice under Sections 76 and 78 of the Finance Act, 1994. 2. The facts are not in dispute. The assessee is a cable operator. He got himself registered as a service provider under the Finance Act. Thereafter he was remitti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tral Excise Appeals, who accepting the cause shown by the assessee set aside the order of the assessing authority imposing penalty. In pursuance to the said order the penalty paid was also refunded. The revenue challenged the said order of the Appellate Commissioner before the Tribunal. The Tribunal set aside the order of the Appellate Commissioner on the ground that once suppression of facts is established which do not constitute sufficient cause for nonpayment of duty and interest the penalty is liable to be imposed under Section 76 and 78 of the Act even though the duty and interest is paid even before the issue of show cause notice. Aggrieved by the said order the assessee is before us. 3. Learned counsel for the assessee submitted th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, in order to demonstrate that the reason for nonpayment of tax was non-receipt of the subscription from the subscribers, he has not produced any material. It is because he has not maintained any records. Not maintaining records cannot constitute a sufficient cause under Section 18 to avoid the liability to pay penalty. Therefore, once he has registered himself, filed returns, aware of the liability under the Act, the returns which he filed did not truly represent the facts which constituted a willful mistake. Sub-Section 4 of Section 73 expressly provides the benefit of sub-Section 3 of Section 73 is not attracted to a case falling under sub-Section 4. Therefore, the contention of the assessee that he is not liable to pay penalty as he ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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