TMI Blog2008 (10) TMI 175X X X X Extracts X X X X X X X X Extracts X X X X ..... on of penalty u/s 76 and 78 is too harsh and that if the penalty has been imposed u/s 78, separate imposition of penalty under Section 76 is not called for - Commissioner (A) in impugned order upholding penalty u/s 78 but setting aside penalty under sections 76 and 77, is justified - ST/592-593/2008-SM - 576-577/2008-SM(BR)(PB) - Dated:- 1-10-2008 - Shri Rakesh Kumar, Member (T) Shri S. Ga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondents paid the service tax along with the interest. However, subsequently, the show cause notices were issued for confirmation of service tax demand and imposition of penalty under Sections 76, 77 and 78 and the Deputy Commissioner vide orders-in-original dated 16-10-07 and 24-10-07, in addition to confirmation of the service tax demands, also imposed penalties under Sections 76, 77 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not warranted. However, during the period of dispute, there was no such provision and therefore, penalty under Section 76 is warranted and the Commissioner (Appeals) has wrongly set aside the same. 3. The learned counsel on behalf of the respondent pleaded that since in both these cases, the entire amount of service tax along with interest and equal penalty under Section 78 has been paid, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enalty under Section 78 is attracted in the cases where there is mens rea and penalty under Section 76 is attracted in those cases of failure to pay the service tax where there is no mens rea, that cases in which penalties have been imposed under Section 78 cannot fall in respect of the same service tax evaded for a double penalty under Section 76 also, that simultaneous imposition of penalty unde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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