TMI Blog2015 (1) TMI 285X X X X Extracts X X X X X X X X Extracts X X X X ..... s paying earlier. Accordingly, it is held that penalties under Section 78 of the Finance Act, 1994 is imposable. As per the provisions contained in Section 73 of the Finance Act, 1994, during the relevant period, if an appellant pays the entire service tax along with interest including 25% of the Section 78 penalty then no show cause notice was required to be issued and proceedings are considered as concluded. Where no show cause notice is required to be issued then penalties under Section 76 and 77 of the Finance Act, 1994 also get waived and no show cause notice is required to be issued for imposition of such penalties - Decided partly in favour of assesse. - Appeal No. : ST/13313/2013 - Final Order No. A/12332/2014-WZB/AHD - Dated:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CCE, Ahmedabad - [2010 (19) STR 276 (Tri. Ahmd.)] (e) Jay Shipping vs. CCE, Rajkot - [2010 (20) STR 774 (Tri. Ahmd.)] (f) K.G. Corporation vs. CST, Ahmedabad - [2010 (20) STR 832 (Tri. Ahmd.)] (g) CCE, Ahmd vs. Sagar Enterprises - [2010 (18) STR 2212 (Tri. Ahmd.)] (h) Inland Mines Minerals Pvt. Limited vs. CCE, Rajkot - [2011 (21) STR 360 (Tri. Ahmd.)] (i) Camex Reality Pvt. Limited vs. CST, Ahmd - [2014 (36) STR 444 (Tri. Ahmd.)] (j) Newton Engg. Chemicals vs. CCE, Vadodara - [2008 (12) STR 378 (Tri. Ahmd.)] 2.1 It was strongly argued by the learned Chartered Accountant that even if penalties are sustainable still as per Karnataka High order in the case of United Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Finance Act, 1994 also get waived and no show cause notice is required to be issued for imposition of such penalties. Facts of the case and conclusions arrived at by the Karnataka High Court in the case of United Communication Udupi vs. Mangalore -III (supra) under similar facts are relevant and are reproduced below:- 2. The facts are not in dispute. The assessee is a cable operator. He got himself registered as a service provider under the Finance Act. Thereafter he was remitting the service tax payable for the amounts he received from his customers. In pursuance of an enquiry by the department, he gave information regarding the number of subscribers, the amount charged, amount collected and the period for which it is collecte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der of the Appellate Commissioner before the Tribunal. The Tribunal set aside the order of the Appellate Commissioner on the ground that once suppression of facts is established which do not constitute sufficient cause for non-payment of duty and interest the penalty is liable to be imposed under Sections 76 and 78 of the Act even though the duty and interest is paid even before the issue of show cause notice. Aggrieved by the said order the assessee is before us. 3. Learned counsel for the assessee submitted that when once the duty and interest is paid even before issue of show cause notice by virtue of sub-section (3) of Section 73 of the Act, authorities could not have initiated proceedings much less levied penalty and therefo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecords. Not maintaining records cannot constitute a sufficient cause under Section 18 to avoid the liability. Therefore, once he has registered himself, filed returns, aware of the liability under the Act, the returns which he filed did not truly represent the facts which constituted a wilful mistake, sub-section (4) of Section 73 expressly provides the benefit of sub-section (3) of Section 73 is not attracted to a case falling under sub-section (4). Therefore, the contention of the assessee that he is not liable to pay penalty as he has paid the differential duty with interest before issue of show cause notice is unsustainable. At the same time it is now well settled that the liability cannot be imposed both under Sections 76 and 78. There ..... X X X X Extracts X X X X X X X X Extracts X X X X
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