TMI Blog2014 (10) TMI 61X X X X Extracts X X X X X X X X Extracts X X X X ..... penalty under both sections would not arise - penalty u/s 76 is set aside and penalty u/s 78 is confirmed - Decided partly in favour of assessee. - Appeal No.ST/169/11 - - - Dated:- 18-7-2014 - Anil Choudhary, J. For the Appellant : Shri Shailendra Jain, CA For the Respondent : Shri B K Iyer, Supdt. (AR) JUDGEMENT Per: Anil Choudhary: The appellant, M/s Grace Toyota, a unit of Cosmic Motors India Pvt. Ltd., have filed the present appeal being aggrieved by the Order-in-Appeal No. SR/425-426/NGP/2010 dated 8.1.2010 passed by the Commissioner of Customs Central Excise (Appeals), Nagpur. 2. The brief facts of the case are that the appellant is an authorized service station registered with the Service Tax Departme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was further contended by the appellant that they may be given benefit under Section 73 (3) as they have paid the entire tax with interest before the issue of show-cause notice. 2.1 The show-cause notice was adjudicated vide Order-in-Original dated 30.6.2010, wherein the adjudicating authority recorded the finding that the appellant in spite of collecting the tax have failed both in depositing the tax as well as in filing the return and as such there is suppression of the facts from the Revenue with intention to evade payment of Service Tax. The proposed demand with interest was confirmed and the same was appropriated. Further, penalty @ ₹ 200/- per day for default has been imposed under Section 76, penalty of ₹ 5000/- under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd interest for delayed payment have been made before issue of show-cause notice, the provisions of Section 73(3) of the Finance Act, 1994 are applicable and no notice under Section 73 will be issued. He also relies on the decision of the Division Bench of this Tribunal in the case of World Wide Vision - 2010 (19) STR 46 (Tri-Bang) wherein Service Tax with interest was paid after visiting by the Revenue Officer, the proceedings are deemed to be concluded and no notice be issued under Section 73 of the Finance Act, 1994. By way of alternative argument, the appellant also argues that both the penalty under Sections 76 and 78 are not applicable as held by the Karnataka High Court in the case of Motor World - 2012 (27) STR 225 (Kar). In that de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tably lead to imposition of penalty equal to the amount by which duty was short paid. The Hon'ble Apex Court in the said ruling observed that the decision in Dharmendra Textile must, therefore, be understood to mean that though the application of Section 11AC would depend upon the existence or otherwise of the conditions expressly stated in the section, once the section is applicable in a case the concerned authority would have no discretion in quantifying the amount and penalty must be imposed equal to the duty determined under sub-section (2)of Section 11A. The Hon'ble Apex Court remanded the matter back to the Tribunal with this observation. 5. Having considered the rival contentions, I find that the case of deliberate default ..... X X X X Extracts X X X X X X X X Extracts X X X X
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