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2023 (3) TMI 497 - AT - Service TaxLevy of penalty u/s 76 & 78 of FA - the service tax along with interest had already been paid - Applicability of Section 73 (3) of Finance Act 1994 - HELD THAT:- As regard, the imposition of penalty under Section 76 in the present case, it is found that the issue is settled by various High Court judgments in CCE VERSUS FIRST FLIGHT COURIER LTD. [2011 (1) TMI 52 - PUNJAB AND HARYANA HIGH COURT] where it was held that simultaneous penalty under Section 76 cannot be imposed when penalty under Section 78 is imposed - thus, the penalty imposed under Section 76 is not sustainable, hence, the same is set aside. Penalty under Section 78 - HELD THAT:- The adjudicating authority even though invoked the extended period but by invoking Section 80 set aside the penalty by considering the fact that the appellant had admittedly paid the entire service tax along with interest before issuance of show cause notice. It is further found that the non payment of service tax was detected only during audit of the appellant’s books of accounts, therefore, the transaction on which the service tax demanded were very much entered in the books of the appellant’s account. The adjudicating authority has rightly set aside the penalty under Section 76 & 78 of the Finance Act, 1994 - there are no infirmity in the order of the adjudicating authority - appeal allowed - decided in favour of appellant.
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