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2011 (4) TMI 1061 - CESTAT, NEW DELHIPower of revision - Penalty under Sections 75A, 76, 77 and 78 of the Finance Act, 1994 – Held that:- penalty imposable under Section 75A no more remains in the statute book from 10-9-05, but at the relevant point of time when the law was in force to regulate taxable activities through the process of registration, such a mandatory requirement cannot be dispensed with, levy of penalty under Section 75A to the extent levied Penalty under Section 76 & 78 - Record no where indicates any element of Section 78 of Finance Act, 1994 to show that the appellant had made deliberate attempt to escape its liability under law, authority himself has recorded that service tax registration was allotted to the appellant by which the assessee came to record for exercise of jurisdiction over them. The revisionary power is exercisable only if the act of the authorities below is prejudicial to the interest of Revenue, levy of penalty under Sections 76 and 78 of Finance Act, 1994 which are severe in nature, levy thereof on small tax payers is unwarranted without bringing mens-rea to record Penalty under Section 77 - there was failure to file the return. Failure to file the return has certainly caused prejudice to the interest of Revenue depriving the Revenue from the scope of scrutiny of the affairs of the appellants. However, the appellants after getting revised figures came forward to pay the taxes and revised returns were filed. The orders do not indicate the length of failure on the part of the appellants to impute their mala fide in filing their revised returns - order has not demonstrated the reasoning for imposition of penalty under Section 77 of the Finance Act, 1994 it suffers from legal infirmity, no penalty under Section 77 and that is set aside, appeals are partly allowed to the extent indicated above
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