The Commissioner of Customs and Central Excise Guntur Vs. M/S. Micafab Exports (P) Ltd. - Court Judgment

SooperKanoon Citationsooperkanoon.com/944358
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT
Decided OnAug-24-2012
Case Number Service Tax Appeal No.1905/2010 (Arising out of Order-in-Appeal No. 02/2010 (G) (D) ST dated 25
Judge HONOURABLE MR. M. VEERAIYAN, MEMBER (TECHNICAL)
AppellantThe Commissioner of Customs and Central Excise Guntur
RespondentM/S. Micafab Exports (P) Ltd.
Advocates:For the Appellant : M.M. Ravi Rajendran, Deputy Commissioner (AR). For the Respondent : None.
Excerpt:
this is an appeal by the department against the order of the commissioner (appeals) no. 02/2010 (g) (d) st dated 25.05.2010. 2. heard the learned deputy commissioner (ar). none appears for the respondent in spite of notice. 3. original authority confirmed a demand of service tax and imposed penalties under sections 78 and 77 but refrained from imposing penalty under section 76. the department filed appeal before the commissioner (appeals) who held that once section 78 penalty is imposed, there was no justification for imposing a separate penalty under section 76 and rejected the appeal of the department. the department is in appeal against the said order of the commissioner (appeals). 4. learned deputy commissioner (ar) reiterates the grounds of appeal. 5. i have carefully considered the.....
Judgment:

This is an appeal by the department against the order of the Commissioner (Appeals) No. 02/2010 (G) (D) ST dated 25.05.2010.

2. Heard the learned Deputy Commissioner (AR). None appears for the respondent in spite of notice.

3. Original authority confirmed a demand of service tax and imposed penalties under Sections 78 and 77 but refrained from imposing penalty under Section 76. The department filed appeal before the Commissioner (Appeals) who held that once Section 78 penalty is imposed, there was no justification for imposing a separate penalty under Section 76 and rejected the appeal of the department. The department is in appeal against the said order of the Commissioner (Appeals).

4. Learned Deputy Commissioner (AR) reiterates the grounds of appeal.

5. I have carefully considered the submissions of the learned Deputy Commissioner and perused the records. I find that the original authority has confirmed the demand of service tax and imposed penalty under Section 78 but refrained from imposing penalty under Section 76. Commissioner (Appeals) has also upheld the non-imposition of penalty under Section 76. The department is in appeal against the concurrent finding of the authorities below against imposition of penalty under Section 76. Undisputedly penalty under Section 78 stands imposed. It has been held by the Tribunal in the case of Opus Media and Entertainment Vs. CCE, Jaipur 2007 (8) S.T.R. 368 (Tri.-Del.) that when Section 78 penalty is imposed, there is no justification for imposing penalty under Section 76. In view of the above, I do not find any merit in the appeal by the department and the same is rejected.