TMI Blog2016 (6) TMI 160X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot alter the liability of penalty, as per Section 78 of the Finance Act and that the appellant has already been spared from non-imposition of penalty under section 78 of the Act. This is clearly an erroneous finding as the penalty under section 78 can be imposed only under the circumstances mentioned in the section. As per Judgment of Hon'ble Supreme Court in the case of CCE, Nagpur Vs Ballarpur Industries Ltd. [2007 (8) TMI 10 - SUPREME COURT OF INDIA], the show cause notice is the very foundation in any proceedings. What is not alleged in the show cause notice, cannot be traversed at a later point of time in any proceedings. Therefore, by following the same the penalty under section 78 of the Finance Act is unsustainable which is p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounts already paid towards the demand and also proposing imposition of penalty of ₹ 25,51,403/- under Section 78 of the Act. Upon adjudication of the notice, the adjudicating authority passed OIO No.85/2011 dt. 5.9.2011 confirming the demand along with interest. He appropriated the entire amount of tax and interest already paid by them. He imposed equivalent penalty of tax under Section 78 of the Act. Being aggrieved with the above order of adjudicating authority, appellants preferred appeal before Commissioner (Appeals). The ld. Commissioner (Appeals) vide impugned order dt. 27.7.2015 upheld the OIO. Hence the present appeal before Tribunal. 3. Ld. Counsel, Shri B. Ganesh Prabhu, Chartered Accountant appearing on behalf of appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1) CCE Bangalore Vs Geneva Fine Punch Enclosures Ltd.-2011 (267) ELT 481 (Kar.) (2) Continental Foundations Jt. Venture Vs CCE Chandigarh- 2007 (216) ELT 177 (SC) (3) Landis +Gyr Ltd. Vs CCE Kolkata-2013 (290) ELT 447 (Tri.-Kolkata) (4) Shivas Industrial Caterers India Pvt. Ltd. Vs CST -2014 (34) STR 367 (Tri.-Chennai) (5) Shriram EPC Ltd. VS CST Chennai-2014 (35) STR 564 (Tri.-Chennai) (6) Sunita Tools Pvt. Ltd. Vs Commissioner-2015 (37) STR 644 (Tri.-Mumbai) Therefore, in view of the aforesaid submissions and case laws, the learned counsel pleads for waiver of penalty. 4. Heard Shri L. Paneerselvam, AC, Ld. A.R who reiterates the impugned order. 5. Heard both sides. The period of dispute is from 1.9.2008 to 31. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any, which in his opinion has not been paid by such person and, then, the Central Excise Officer shall proceed to recover such amount in the manner specified in this section, and the period of eighteen months referred to in sub-section (1) shall be counted from the date of receipt of such information of payment. Explanation - For the removal of doubts, it is hereby declared that the interest under section 75 shall be payable on the amount paid by the person under this sub-section and also on the amount of short payment of service tax or erroneously refunded service tax, if any, as may be determined by the Central Excise Officer, but for this sub-section. (4) Nothing contained in sub-section (3) shall apply to a case where any s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellants accounts. This alone is not sufficient warranting invocation of penalty under section 78 of the Finance Act 1994. Section 78 of the Finance Act 1994, during the period in dispute, reads as under: Penalty for suppressing value of taxable service. Where any service tax has not been levied or paid or has been short-levied or short-paid or erroneously refunded, by reason of (a) fraud; or (b) collusion; or (c) wilful mis-statement ; or (d) suppression of facts; or (e) contravention of any of the provisions of this Chapter or of the rules made thereunder with intent to evade payment of service tax, the person, liable to pay such service tax or erroneous refund, as determined under sub-sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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