TMI Blog2019 (1) TMI 324X X X X Extracts X X X X X X X X Extracts X X X X ..... rness the penalty imposed under Section 76 of the Act is liable to be set aside. The entire tax along with interest and penalty at 25% of tax demand is paid immediately upon issue of SCN and before Adjudication. So some leniency is warranted in the case. The case was adjudicated on 20.06.2008. The entire demand was paid on 12.05.2008. The interest and penalty at 25% of the demand were paid on 19.07.2008. Therefore, all the dues came to be paid before one month of the date of issue of the adjudication Order. Penalty imposed under Section 76 of the Finance Act, 1994 is liable to be set aside - the payment of the full demand along with interest and the payment of penalty @ 25 % of the duty demanded within/before 30 days of the issue of O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the plea that Penalty can not be imposed once the taxes along with interest and penalty equivalent to 25% of the tax demand is paid before 30 days of determination of the taxes. The petitioner submits that they acted on a bona-fide belief that the liabilities are discharged in full in view of the proviso to Section 78 of the Finance Act, 1994. 3.As no reply was forthcoming for the letter dated 19.09.2008 to the learned 1st respondent/Adjudicating Authority, and under pressure from the Department of coercive action for liquidating the arrears, the petitioner had filed a formal application for rectification of mistake of the impugned OIO under Section 74. The 1st respondent/Adjudicating Authority vide letter dated 01/12/2009 had reje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed before the Commissioner Appeals, in all fairness it should be accepted that the benefit of the SSI Exemption in the first year is not dealt with though any relief could be ordered at this stage. Without prejudice to the claim of benefit of SSI exemption, the petitioner's contention that simultaneous penalty under Section 76 and Section 78 can not be imposed. I agree with the contentions. I am aware that various High Courts had taken conflicting views in the question of simultaneous penalties under Section 76 and Section 78 . I choose to take the petitioner's view in as much as the Act itself got amended at a later date to the effect that both penalties cannot be imposed simultaneously. Therefore, in all fairness the penalty imp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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