TMI Blog2014 (9) TMI 213X X X X Extracts X X X X X X X X Extracts X X X X ..... receipt of the order. There is merit in this argument. - Further The appellant's claim with regard to payment of penalty in excess what is permissible under section 76 needs to be verified at the end of the adjudicating authority. - Matter remitted back to adjudicating authority for verification of facts and determination of penalty - Decided partly in favor of assessee. - ST/302 of 2010 - Order No. A/111/12 - Dated:- 18-5-2012 - CHANDRASEKHARAN P.R. ,J. For the Appellant : Venkatesh Iyer, Advocate, For the Respondent : A.K. Prabhakar, Superintendent (AR), ORDER :- P.R. CHANDRASEKHARAN (Technical Member).- The appeal is directed against order-in-appeal No. AKP/144/NSK/2010 dated May 13, 2010 passed by the Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... They are not disputing the service tax liability or interest liability but are only disputing imposition of penalties, both under section 76 as well as under section 78. The appellant is a small service provider and, therefore, leniency should have been shown on the appellant and penalty only under one of the section should have been imposed. Secondly, he submits that he has paid the service tax demand along with interest and also 25 per cent of the penalty imposed under section 78 within 30 days of receipt of the impugned order. However, since their stay application was rejected by this Tribunal and the appellant was directed to pre-deposit the entire amount of penalties, he has once again deposited the full amount of penalties and, theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the liability to penalty under section 76 as well as under section 78 of the Finance Act, 1994, the issue is already settled in the case of Krishna Poduval [2006] 3 VST 21 (Ker); [2006] 1 STR 185 (Ker). The honourable High Court of Kerala in the said case held as follows (page 28 in 3 VST): The penalty imposable under section 76 is for failure to pay service tax by the person liable to pay the same in accordance with the provisions of section 68 and the Rules made thereunder, whereas section 78 relates to penalty for suppression of the value of taxable service. Of course these two offences may arise in the course of the same transaction, or from the same act of the person concerned. But we are of opinion that the incidents of impositi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hall be 25 per cent of service tax so determined. The second proviso states the benefit of reduced penalty under the first proviso shall be available only if the amount of penalty so determined has also been paid within the period of 30 days referred to in that proviso. In the instant case, the order has been passed on November 30, 2009 and the appellant has produced photocopies of the challans under which he has paid the service tax and interest and also payment of penalty under section 78 vide challan dated December 22, 2009. If that be so, the appellant is eligible for 25 per cent of the penalty imposed under section 78 and if the appellant had paid any amount in excess of the same, the appellant is entitled for the consequential relief. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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