TMI Blog2014 (9) TMI 777X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act was imposed, penalty under section 76 of the Act could never be imposed may not be correct, the appellate authority was within its jurisdiction not to levy penalty under section 76 of the Act having regard to the fact that penalty equal to service tax had already been imposed under section 78 of the Act. This thinking was also in consonance with the amendment now incorporated though the said amendment may not have been applicable at the relevant time - Decided partly in favour of assessee. - Service Tax Appeal No. 4 of 2012 (O & M) - - - Dated:- 18-1-2012 - KUMAR M.M. AND AJAY KUMAR MITTAL JJ. JUDGMENT This appeal has been filed by the appellant against the orders dated December 8, 2008, December 22, 2009 and Septemb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely thereafter cleared all the dues of the service tax for the work done by him during the said period. Inspite of that, he was issued a show-cause notice dated October 10, 2007 whereby a demand of ₹ 4,80,957 under the provisions of sections 73 and 75 of the Finance Act, 1994 (in short, the Act ) was made. Even penalty under the provisions of sections 76, 77 and 78 of the Act along with rule 6 of the Service Tax Rules, 1994 was also imposed. The appellant appeared before respondent No. 3 and presented his case. Respondent No. 2 confirmed the demand made by respondent No. 3 vide order dated December 8, 2008, annexure P-1. The appellant challenged the said order before the Commissioner (Appeals), Customs and Central Excise, Chandigrah. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered in favour of the assessee in the aforesaid case. As regards question (ii), it was submitted that the Tribunal recorded that the assessee was required to establish by producing sufficient material that ingredients of section 80 stood fulfilled whereas the assessee had not even filed reply to the showcause notice. Further, it was submitted that question (iii) does not arise as no such plea was taken before the Tribunal. After hearing learned counsel for the parties, we find that question (i) alone arises for consideration. In respect of question (ii), the absence of any evidence produced by the appellant to prove that essential requirements of section 80 of the Act were complied with, no substantial question of law as claimed arises. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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