TMI Blog2014 (9) TMI 748X X X X Extracts X X X X X X X X Extracts X X X X ..... ice has been issued then the assessee is required to make payment of penalty. He has further argued that even before the issuance of show cause notice if the Service Tax and interest has been deposited by the assessee, still he would require to deposit the penalty as he would have known as to what penalty would be levied on the assessee, therefore, at least he should have deposited the 25% of the penalty amount within thirty days. - neither any penalty was levied by the appellant nor any quantum of penalty was fixed. Therefore, the assessee has not committed any illegality in not depositing any penalty amount - penalty levied against the assessee in excess of 25% under Sections 76 and 78 of the Finance Act, 1994, has rightly been set aside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rest thereof is paid before issuance of show cause notice, the provisions of Section 73 (1A) of Finance Act, 1994 comes into play and penalty of 25% of the tax liability is sufficient. 5. Learned departmental representative on the other hand would submit that the issue of imposition of simultaneous penalty under Section 76 and 78 of the Finance Act, 1994 has been considered in depth by the Bench in the case of Om Sai Engineering Works Ors - 2014-TIOL-894-CESTAT-AHM and produces a copy of the said case law. It is his submission that, though there is a provisions which has been enacted in Section 78 of the Finance Act, 1994 for imposition of penalty only under Section 78, those provisions are effective from 10.05.2008 and any infringemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act. An option was given to them to pay penalty of 25% if it is paid within thirty days. However, no penalty was imposed under Sections 75A and 77 of the Act. 4. The assessee challenged the order dated 12-11-2009 passed by Joint Commissioner, Service Tax, by way of appeal before the Commissioner (Appeals), who by his order dated 16-3-2010 rejected the appeal. 5. The assessee thereafter filed an appeal before the CESTAT. The Tribunal by its judgment dated 22-2-2012 [2013 (30) S.T.R. 470 (Tri. Ahmd.)] has allowed the assessee s appeal by placing reliance on Circular No. 137/167/2006-CX., dated 3-Oct.-2007. The Tribunal held that the provisions of Section 73(1A) of the Act, will apply in full force as the entire amount of Service Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lity, and at that time, neither any penalty was levied by the appellant nor any quantum of penalty was fixed. Therefore, the assessee has not committed any illegality in not depositing any penalty amount. 7. For the aforesaid reasons, the penalty levied against the assessee in excess of 25% under Sections 76 and 78 of the Finance Act, 1994, has rightly been set aside by the Tribunal. We do not find any illegality in the order of the Tribunal. The question raised by the assessee in our opinion does not raise any substantial question of law. We do not find any merit in this Tax Appeal. This Tax Appeal is accordingly dismissed. 9. In view of the ratio laid down by the Hon ble High Court of Gujarat, I find that the impugned order, to the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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