simultaneous penalty sustainable?

[felix ka]

hai experts,

As per an OIO issued on us by the Additional Commissioner, penalties under sec 76 & 78 of the FA,1994 are simultaneously imposed. is that sustainable?

period of dispute: 4/ 2006 to 9/2009

issue: short payment of ST in connection with the CFA services provided

penalties imposed as per the OIO:

(a) Rs. 100/- per day from the defaulted payment of Service Tax till 17-4-2006 and thereafter Rs. 200/-per day till 10-5-2008 Under Sec 76 of the  FA,1994

(b) Rs. 5000/- Under Sec 77 of the FA, 1994

(c ) Amount equal to the short payment alleged Under Sec 78 of the  FA,1994 

is that sustainable in view of the changes from 10-5-2008?

AI Summary

Penalty mutual exclusivity: simultaneous imposition under Section 76 and Section 78 is not permissible; impose only one penalty.
Penalties for failure to pay and for suppression/concealment are mutually exclusive and should not be imposed simultaneously for the same offence; the 2008 proviso expressly barred concurrent penalties and tribunals and high courts have applied that principle, often sustaining the suppression penalty alone or exercising appellate discretion to delete the payment failure penalty when mens rea is not made out.