9911796707
TMI Blog2021 (9) TMI 923X X X X Extracts X X X X X X X X Extracts X X X X ..... cing penalty under section 78(1) of the Finance Act, 1994 to Rs. 15,97,932/-. All other amounts of Service Tax, Interest and penal liabilities & late fees under the Order-in-Original No. 47/ST/JC/2017 dated 29.08.2017 passed by the Joint Commissioner, CST & Central Excise, Aurangabad are upheld." 2.1 The appellant has filed this appeal against the order of the Commissioner (Appeals) limiting the penalty to Rs. 15,97,932/-, stating various grounds and decisions, - * Hajarilal Jangid [2011 (24) STR 510 (Tri.-Mumbai)] * Spectrum Power Generation Ltd. [2017 (3) GSTL 500 (Tri.-Hyd.)] * Galaxy Construction Pvt. Ltd. [2017 (48) STR 37 (Bom.)] * Kum United Trax Pvt. Ltd. [2014 (36) STR 210 (Tri.-Bang.)] * K.S. Murlimohan [2011 (21) STR 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Tribunal shall make an order setting aside the dismissal and restore the appeal." 3.2 In view of the above provisions, this appeal is liable for dismissal on the ground of non-prosecution of the appeal in terms of Rule 20 of the CESTAT (Procedure) Rules, 1982. 3.3 The Commissioner (Appeals) has in para 11.3 of the impugned order recorded as follows:- "11.3 Therefore, total penalty of Rs. 15,97,932/- under section 78(1) of the Finance Act, 1944 is required to be upheld because the appellant had contravened the provisions of the Act & Rules made there-under with intent to evade payment of duty." 3.4 Even on merits, I find that the issue is squarely covered against the appellant by the decision of the Hon'ble Supreme Court in the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the service of notice then the Revenue will not give him the notice under sub-section 1. This, perhaps, is the basis of the common though erroneous view that no penalty would be leviable if the escaped amount of duty is paid before the service of notice. It, however, overlooks the two explanations qualifying the main provision. Explanation 1 makes it clear that the payment would, nevertheless, be subject to imposition of interest under Section 11AB. Explanation 2 makes it further clear that in case the escape of duty is intentional and by reason of deception the main provision of sub section 2B will have no application." 3.5 In view of the above, the appeal is liable to be dismissed on merits also. 4.1 Accordingly the appeal is di ..... X X X X Extracts X X X X X X X X Extracts X X X X
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