The instruction of the Board dated 31.10.07, sought to be relied upon by the department, is in the context of concluding proceedings on payment of service tax, interest and 25% of the amount as penalty on issue of show cause notice. In the present case, adjudication has been done by the original authority and penalties have been imposed under various sections including Section 78. Proviso to Section 78 clearly provides for payment of concessional penalty if the duty and interest “determined” by the authorities are paid within 30 days. Obviously, the determination of the liability is through issue of speaking order and the original authority has passed the order on 08.06.07. However, it is noticed that the original authority has not given the option to pay the reduced penalty. The decision of the Commissioner (A) extending the option is in conformity with the decision of the Hon’ble High Court of Delhi in the case of K.P Pouches (P) Ltd. Vs. UOI – 2008 (228) ELT 31 (Del.)
There is no specific prayer for restoration of penalty under Section 76 & 77. Considering that penalties under Section 78 has been imposed and upheld by the Commissioner (A) to the extent of 25%, there is no justification for a separate penalty under Section 76 as held by the Tribunal in the case of AK & I Advertising Pvt. Ltd. Vs. CCE, Bangalore – 2008 (12) STR 315 (Tri.-Bang.)
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
SOUTH ZONAL BENCH, CHENNAI
ST/341/2009
Arising out of Order in Appeal No. 157/2008 (P) (ST) Dated: 29.12.2008
Passed by the Commissioner of Central Excise (Appeals), Chennai
Date of Decision: 18.02.2011
CCE, PONDICHERRY
Vs
M/s AMMAA TRADERS
FINAL ORDER NO.331/2011
Per: M Veeraiyan:
