9911796707
TMI Blog2008 (10) TMI 119X X X X Extracts X X X X X X X X Extracts X X X X ..... ervices provided by them during the period from March 2003 to September 2004, which culminated in confirmation of demand of service tax amounting to Rs. 39,692/-, equal amount of penalty under Section 76 of Finance Act, 1994 and equal amount of penalty under Section 78 of Finance Act, 1994. In fact, original adjudicating authority, the Assistant Commissioner had imposed only nominal penalty on the appellant under various sections and Commissioner has passed an order in exercise of his power under Section 84 of Finance Act, 1994 and has enhanced the penalty as mentioned above. 2. Ld. Consultant on behalf of the appellant submits that penalty under Section 76 is not mandatory and is discretionary and penalty as imposed by Assistant Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed elaborately and as observed by him that appellants are liable to pay penalty under Section 76 in view of the delay of 3203 days. Further, Section 76 does not give any discretion and discretionary power can be exercised only under Section 80. But in this case appellants have failed to show that they are entitled to the benefits of Section 80. In view of the above, the penalty of Rs.39,692/- under Section 76 of the Finance Act, 1994 is upheld. 3.2 In view of the Hon'ble Supreme Court judgment with, regard to Section 11AC of Central Excise Act, which is similar to Section 78 under Finance Act, 1994, penalty under Section 78 is mandatory unless duty, interest and penalty to the extent of 25% have been paid. (UOI vs. M/s Dharmendra Textile P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the courts as regards applicability of the proviso relating to abatement of penalty, the non payment of 25% of enhanced penalty in terms of Commissioner's order under Section 84 of the Finance Act, 1994, would not affect the right of the appellant to pay the penalty within 30 days of the order of this Tribunal and get benefit of abatement. Accordingly, penalty of Rs.39,692/- under Section 78 imposed on the appellant is upheld but appellants shall be liable to pay only 25% of the penalty, if they make the payment within 30 days from the date of communication of this order, as provided under Section 78 of the Finance Act, 1994. The appeal is decided in the above terms.
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