TMI Blog2014 (11) TMI 421X X X X Extracts X X X X X X X X Extracts X X X X ..... ount, besides penalty under Section 78, which is of another equal extent. By virtue of the nature of dispute and even going by the admission from the part of the petitioner, the liability to be satisfied by the petitioner is ₹ 14,88,486/-. The total liability to be cleared by the petitioner is three times, less the amount if any, satisfied. - Petition disposed of. - WP(C).No. 27661 of 2014 - - - Dated:- 27-10-2014 - MR. E P.R.RAMACHANDRA MENON, J. FOR THE APPELLANT : ADV. SRI.S.KRISHNAMOORTHY FOR THE RESPONDENT : ADVS. SRI.RANJITH JACOB KOSHY, SC, SRI.THOMAS MATHEW NELLIMOOTTIL,SC JUDGMENT The grievance of the petitioner is mainly with regard to Ext. P6 demand, requiring the petitioner to satisfy a sum of ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 78 of the Act. The appellate authority intercepted the penalty under Section 76, sustaining penalty under Section 78. The matter was taken up further by the Revenue , by approaching the CESTAT. The CESTAT rendered a finding vide Ext. P4 dated 08.11.2013 that, in view of the decision rendered by this Court in Asst. Commissioner Vs. Krishna Poduval [2006 (1) S.T.R. 185 (Ker.)] holding that penalty could be imposed under both the provisions, the case of the petitioner was not liable to be entertained. Though the petitioner took up the matter before this Court by way of C.E. Appeal No. 3 of 2014, the same did not yield any positive result and the appeal was dismissed vide Ext. P5 judgment dated 07.04.2014. This was followed by Ext. P6, demandin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sing officer level. If it is found on the ground of non-recovery from their clients, the tax liability of the appellant is less than what is determined in the Order - in - Original, that benefit has to be granted. The penalty under Section 78 also shall be reduced proportionately in that case. Since penalty under Section 78 is upheld, no separate under Section 76 is found justified as held in the Tribunal's decision in THE FINANCIERS Vs. CCE Jaipur 2007 (8) STR 7 (Tribunal Delhi). In terms of Section 80 the penalty under Section 76 is set aside. With this modification the Order-in- Original's upheld and appeal is disposed on the above lines. From the above, this Court finds that there is a positive finding by the appellate author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lity to be satisfied by the petitioner is ₹ 14,88,486/-. The total liability to be cleared by the petitioner is three times, less the amount if any, satisfied. This of course is a matter to be looked into, while passing revised order by the assessing authority pursuant to Ext. P3. Going by the undisputed extent of facts/admission made from the part of the petitioner and also accepting their version as to the satisfaction of ₹ 7 lakhs, the petitioner is still liable to effect the undisputed extent of more than ₹ 31 lakhs. 7. In the above circumstances, the petitioner is required to satisfy an amount of ₹ 31 lakhs forthwith, at any rate, within 'two weeks' from the date of receipt of a copy of this judgment, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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