CCE Vs. AKASH CABLE

JUDGEMENT

(1.) THIS is an Appeal by the Department against the order of the Commissioner (Appeals) No. 347/CE/Ldh/2008 dated 22.10.08.

(2.) HEARD both sides.

(3.) LD . SDR submits that it is a clear case of non -payment of Service Tax knowingly by the assessee citing the ground that their association was contesting the tax liability and was taking up the matter with the higher Authorities. Under these circumstances, imposition of penalty under Section 76 for the delay in payment of Service Tax and imposition of penalty under Section 78 for wilful, suppression of facts are justified especially because the period is prior to amendment to Section 78 on 10.5.08 by which, it was clarified that if the penalty is payable under Section 78 the provisions of Section 76 was not to be applied. He also relies on the decision of Hon'ble High Court of Kerala in the case of Assistant Commissioner of Central Excise v. Krishna Poduval reported in, 2006 (1) STR 185 wherein it has been held that the provisions of both the Sections 76 and 78 shall apply even if offences are committed in course of same transactions or arise out of the same act and penalty imposable for ingredients of both offences.