TMI Blog2017 (2) TMI 1048X X X X Extracts X X X X X X X X Extracts X X X X ..... and u/s 73(1) ibid and its determination by the adjudicating authority, the penalty u/s 78 of the Act is not sustainable. Appeal disposed off - decided partly in favor of appellant. - ST/60042/2016 - A/60147/2017-SM[BR] - Dated:- 31-1-2017 - Mr. Devender Singh, Member (Technical) Sh. Mukesh Pandey, C.A. for the Appellant(s) Sh. Harvinder Singh, AR for the Respondent(s) Per : Devender Singh The appellants are in appeal against the Order-in-Appeal No. JAL-EXCUS-000-APP-267-15-16 dated 21.01.2016 passed by the Commissioner of Service Tax (Appeals), Chandigarh. 2. Brief facts of the case are that the appellants are registered with the Department since 06.01.2010 for providing 'outdoor caterer service'. Duri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty can be imposed under Section 78 in the absence of demand. He invited attention to Section 78 of the Act arguing that demand under proviso to Section 73(1) was a prerequisite for imposition of penalty. He also pleaded that they were new in the business and all the facts were in the knowledge of the department. He relied upon the following case laws: (a) Total Security System vs. CC, Goa - 2008 (10) STR 624 (Tri. -Mum.) (b) Dhillon Kool Drinks Beverages vs. CCE, New Delhi - 2000 (120) ELT 81 (c) CCE vs. Rupinder Kaur - 2014 (36) STR 3233 (Kar.) (d) Prasad Corporation Ltd. vs. CCE, Chennai - 2013 (30) STR 571 (Tri. -Chen.) (e) Golden Laminates Ltd. vs. CCE, Delhi-Ill - 2001 (136) ELT 1063 (Tri. -Del.) 4. Ld. AR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eous refund, as determined under sub-section (2) of Section 73, shall also be liable to pay a penalty, in addition to such service tax and interest thereon, if any, payable by him, which shall be equal to the amount of service tax . Admittedly, the determination of the demand of service tax under Section 73(2) ibid has not taken place in this case. Without the raising of the demand under Section 73(1) ibid and its determination by the adjudicating authority, the penalty under Section 78 of the Act is not sustainable. The judgment of the Tribunal in Total Security System vs. CCE, Goa - 2008 (10) STR 624 (Tri. -Mum.) is squarely applicable to the facts of this case. In view of the forgoing, the penalty under Section 78 ibid is liable ..... X X X X Extracts X X X X X X X X Extracts X X X X
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