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TMI Blog2012 (10) TMI 260X X X X Extracts X X X X X X X X Extracts X X X X ..... ZB/HAD/2011 pronounced on 15.7.2011. 2. Learned advocate submitted that the appellant had made submission that penalty under section 76 and 78 of Finance Act, 1994 (the Act) could not have imposed even prior to the amendment in 2008 wherein it was provided that if penalty is imposed under section 78 no penalty can be imposed under section 76. He submitted that appellant had relied upon the decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be considered. 2.1 On behalf of the Revenue, it was submitted that the fact that Tribunal had relied upon the decision of Hon'ble High Court of Kerala in the case of Asstt. CCE v. Krishna Puduval [2006] 3 STT 96 (Ker.) and has come to the conclusion that penalty under section 76 and 78 could be imposed in this case, has to be upheld, especially in view of the fact that there is a decision of Hon' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 80, he submits that observation of the Hon'ble Member in last paragraph wherein he has taken a view that the payment of penalty to the extent of 25% reflects the bona fide of the appellant as regard payment of penalty. This observation cannot be relied upon to come to a conclusion that Hon'ble Member has taken a view that this was a fit case for waiver of penalty under section 80 of the Act. 3. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usly prior to amendment of section 78 of the Act. 4. As regards invocation of section 80 of the Act, I am inclined to agree with the submissions made by learned AR. The observations of the Hon'ble Member that - "As argued by the appellant that duty, interest and 25% of the penalty were paid by them on their own. I agree that this act supports the bona fide impression on the part of the appellant. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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