COMMISSIONER OF CENTRAL EXCISE Vs. JAI RAM YADAV

JUDGEMENT

(1.) NONE present for the respondent.

(2.) LEARNED DR submits that learned Commissioner waived penalty levied under Section 76 of the Finance Act, 1994 for which Revenue has been aggrieved and has come in appeal. He submits that there is no reasons given to waive penalty and that is not exhibited by the learned Commissioner's finding. The only reasoning given is that following the decision of the Tribunal in the case of CCE, Ludhiana v. Pannu Property Dealer reported in , 2009 (14) S.T.R. 635(Tri. -Del.) :, 2009 TIOL 409 DEL, no penalty under Section 76 shall be imposed.

(3.) VERY recently, we have held that only in absence of express provision during material period for no levy of penalty simultaneously under Section 76 and Section 78 of the Finance Act, 1994, levy of penalty under both the sections was not immune. This is what has been held by us on 19 -6 -2009 in the case of Bajaj Travels Ltd. v. CCE, New Delhi reported in : 2009 (16) S.T.R. 183 (Tri. -Del.) : 2009 -TIOL -1063 -CESTAT -DEL. Therefore, order by the learned Commissioner granting immunity from Section 76 of the Finance Act, 1994 is reversed. Accordingly, Revenue succeeds in this appeal and penalty imposed by the learned Adjudicating Authority sustains. But the learned Adjudicating Authority has to quantify the demand in respect of penalty under Section 76 of the Finance Act, 1994 and recovery proceedings in accordance with law shall follow in respect of such quantified demand.