TMI Blog2016 (10) TMI 458X X X X Extracts X X X X X X X X Extracts X X X X ..... n to evade duty. In these circumstances, the decision of the Hon'ble High Court of Gujarat is distinguishable. - Relying on the decision of the Tribunal in Vista Infotech (2009 (8) TMI 289 - CESTAT, BANGALORE) we hold that the penalty under Section 78 is unwarranted and the same is set aside. - However, penalty under Section 77 is upheld. Decided partly in favor of assessee. - Appeal No. ST/458, 459/12 - A/90611-90612/16/STB - Dated:- 27-9-2016 - Shri M.V. Ravindran, Member (Judicial) And Shri Raju, Member (Technical) Mr. Patankar, Consultant for the appellant Shri A.B. Kulgod, AC (AR) for the respondent ORDER Per Raju The appellant s were issued show-cause notices for default in payment of duty. The facts of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Finance Act, 1994. Aggrieved by the said orders, appellants are before the Tribunal. 3. Ld. counsel for the appellant argued that the ingredients for the invocation of Section 78 of the Finance Act, 1994 are not present in the instant case and therefore penalty under Section 78 cannot be imposed. He argued that since they had paid the duty voluntarily before issue of show-cause notice the proceedings against them should have been concluded in terms of Section 73(3) of Finance Act, 1994. He further prayed that benefit of waiver of penalty under Section 78 by invocation of section 80. He also sought option to pay reduced 25% as provided under first proviso to Section 78. 4. Ld. AR relied on the impugned order. He further relied on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of service tax came to light of the Department only as a result of special investigation. The Tribunal also noted that assessee had not pleaded any case of financial hardship. 6. We find that the decision of the Hon'ble High Court has been given in circumstances where the appellant had not filed the requisite periodical returns and the fact of non-payment of service tax came to light only on the result of special investigation. In the instant case, appellant has been filing regular returns and therefore there could not have been any specific intention to evade duty. In these circumstances, the decision of the Hon'ble High Court of Gujarat is distinguishable. Relying on the decision of the Tribunal in Vista Infotech (supra) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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