- (1.) This appeal has been preferred by the revenue under Section 35G of the Central Excise Act, 1944 read with Section 83 of the Finance Act, 1994 (in short ''the Act'') against order dated 25-5-2010 passed by the Customs Excise and Service Tax Appellate Tribunal, claiming following substantial questions of law: (i) Whether the judgment and order passed by the ld. CESTAT, New Delhi is proper and legal? (ii) Whether the ld. CESTAT was right in not imposing penalty under Section 76 of the Finance Act, 1994 for the period prior to 10-5-2008 by holding that penalty under Section 76 & 78 of the Act is not imposable simultaneously, particularly when these sections became mutually exclusive from 10-5-2008 after amendment of Section 78 of the Finance Act, 1994?
(2.) The Assessee is a service provider liable to pay service tax under the provisions of the Act. According to the department, there was short payment of service tax to the extent of Rs. 44,858/- for the period from 1-4-2002 to 31-3-2005 and on that account after issuing show cause notice, demand for tax was confirmed and penalty under Sections 76 and 78 of the Act was imposed. On appeal, while the demand of service tax was upheld, penalty under Section 78 was reduced to 25% on the ground that the amount was deposited within one month on receipt of order. Penalty under Section 76 was set aside on the ground that penalty under Section 76 as well as 78 could not have been imposed simultaneously. The appeal of the department against the order of the Commissioner (Appeals) has been dismissed by the Tribunal.
(3.) We have heard learned Counsel for the revenue.;