TMI Blog2011 (3) TMI 628X X X X Extracts X X X X X X X X Extracts X X X X ..... should also not be tyrant but subordinate to legislation - Appeal is allowed - ST/656/2007 - ST/71/2011(PB) - Dated:- 3-3-2011 - S/Shri D.N. Panda, Mathew John, JJ. REPRESENTED BY : Shri Ashok Batra, Advocate, for the Appellant. Shri K.K. Jaiswal, SDR, for the Respondent. [Order per : D.N. Panda, Member (J)]. The learned Counsel presenting the appeal submits that this appellant is having three grievances. The first one is that penalty ought not to have been levied under Section 78 of the Finance Act, 1994 when there was no proposition for such levy in the show cause notice. The second grievance is against levy of penalty under Section 77 of the Finance Act, 1994 which is to the tune of Rs. 1,000/-. The third grievance i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be said to have not gone to treasury. He therefore, prays that the appellant should succeed on all the three counts. 5. Learned DR opposing the contentions on the levy of penalty under Section 78 of the Finance Act, 1994 submits that only when there was investigation done, the appellant came forward to deposit all the taxes due. So far as penalty under Section 76 is concerned, there should be levy on the appellant for not taking registration. 6. As regards the education cess, his submission is that payment is a subject matter of record and if the appellant has discharged the liability, there is nothing wrong to verify the record and give credit. 7. Heard both the sides and perused the record. 8. We are not in disagreement with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1,000/- is levied under section 77 is confirmed. 11. So far as the education cess is concerned, it would be proper on the part of adjudicating authority to reconcile returns with challans relating to the impugned period. If payment has been made, the amounts due from the appellant should be worked out considering the payment made. We make it clear that procedure should not prevent substantive justice when money has gone to the treasury and procedure should also not be tyrant but subordinate to legislation. The adjudicating authority is required to take note of Board s Circular No. 58/2003-S.T., dated 25-4-2003. With the aforesaid direction, we allow the appeal partly. (Order dictated and pronounced in the open Court) - - TaxTMI - TMI ..... X X X X Extracts X X X X X X X X Extracts X X X X
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