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2019 (2) TMI 1566 - AT - Service TaxPenalty u/s 76 and 78 of FA - the respondent has discharged the entire service tax liability along with interest before issuance of the SCN - Held that:- As per sub-section (3) of Section 73 when the assessee has paid up the service tax along with interest on its own ascertainment or being point out by the officers, no penalties are required to be imposed. In the present case, show cause notice was issued even though the appellant had paid up the entire service tax along with interest immediately on being point out by audit. The adjudicating authority has imposed penalty under section 76. The penalties under sections 76 and 78 are mutually exclusive. When the adjudicating authority has considered and imposed penalty under section 76, the same cannot be set aside by the Tribunal in an appeal filed by department requesting to impose penalty under Section 78. There is no ground stated in this appeal contending that penalty imposed under Section 76 is erroneous. The Hon’ble High Court of Gujarat in Commissioner of CGST & Central Excise Vs. Sai Consulting Engineering Ltd. [2018 (5) TMI 1425 - GUJARAT HIGH COURT] has held that simultaneous penalties under Section 76 as well as 78 of the Finance Act cannot be imposed. The simultaneous penalty under section 76 and 78 cannot be imposed under law - when there is a penalty under section 76, the simultaneous penalty under section 78 cannot be imposed under law - the respondent has paid up the entire demand along with interest before issuance of show cause notice, hence further penalty under section 78 is unwarranted. Appeal dismissed - decided against Revenue.
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