TMI Blog2019 (8) TMI 1376X X X X Extracts X X X X X X X X Extracts X X X X ..... -Original, it has been noted by the authorities that they had checked the payment and found them accounted in the assessee s account on ACES that has established that the payment details are genuine. Therefore, there if no cogent reason available to impose penalty under section 78 of FA when under section 76 penalty of 10% was imposed and appellant had abided the same by paying the penalty. The transitory provision as contained under section 78(B)(1)(b), provision of section 76 or 78 shall be applicable to the cases where show cause notice was issued but no order has been passed under sub section of 2 of section 73 as section 76 deals with non-payment of tax other than the reason of fraud or collusion or wilful misstatement or suppressio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le by the appellant. Appellant admitted the liability and paid the same except interest component. It was put to show cause for appropriation of the amount paid by the appellant, for recovery of interest as well as for penalty under various provisions of the Finance Act. The matter was adjudicated upon, duty liability along with interest and penalty was confirmed on all counts under section 76, 77 78 of the Finance Act vide Order-In-Original no. 03/ST-V/HSB/2015-16 dated 22-12-2016. The same order was unsuccessfully challenged before the Commissioner (Appeals) and ultimately appellant has approached this Forum challenging the legality of the order of confirmation passed by the Commissioner (Appeals) on dated 16-02-2018. 3) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shivadikar, in response to such submissions, argued in support of the reasoning and rationality of the order passed by the Commissioner (Appeals) and pointed out that appellant had not preferred to pay the interest till hearing of the appeal in the Tribunal despite the fact that in the Order-In-Original, opportunity was granted to the appellant to discharge the remaining part of the unpaid interest within 30 days for consideration of waver of penalty in its favour. It had not availed the opportunity for which confirmation of OIO by the Commissioner Appeals needs no interference by this Tribunal. 5) Heard from both sides at length and perused the case record. As reveals from the letter cited vide Exhibit-E, appellant had acce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assesses were examined by CERA audit party to point out the deficiencies, leakage of revenue and nonrecoveries of dues by the Central Excise Department. Therefore, it cannot be said that only because audit party had found some receipts are taxable, suppression of fact is made out. It cannot also be established that appellant had any malafide intention to suppress its duty liability from the department. 6) There is nothing available in the show cause about the intention of the appellant to evade payment of tax except that error was pointed out in the EA-2000 audit which appellant accepted to be an error and made its best efforts to rectify the same as in both Order-In-Appeal and Order-In-Original, it has been noted by the aut ..... X X X X Extracts X X X X X X X X Extracts X X X X
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