2013 (11) TMI 508

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....TC/AC/23/Parishram Travels/2009 dt. 17/07/2009 AC CEX & Service Tax Vadodara-II imposed penalty under Sec. 78 and not under Sec. 76 of the Finance Act 1994. 2. In the grounds of appeal appellant relied upon proviso added to Sec. 78 of the Finance Act, 1994 w.e.f. 10/05/08 and Karnataka High Court's Judgment in the case of CCE Vs. Sunita Shetty [2006 (3) STR 404 (Kar.)] and submitted that once penalty under Sec. 78 is imposed no penalty under Sec. 76 of the Finance Act 1994 is attracted. Appellant also relied upon the following case laws.    (a) CCE, Lucknow v/s. Orbit Travels reported in 2009 (15) STR 184 (Tri. Del)    (b) Kaliappa Gounder Thirumana Mandapam v/s. CCE, Coimbatore reported in 2008 (12) STR 43. ....

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....sed when penalty u/s. 78 of the Finance Act has already been imposed. It is the case of the appellant that proviso to section 78 of the Finance Act has been introduced w.e.f. 10.05.08 which clearly specify that if penalty u/s. 78 is imposed then no penalty is required to be imposed u/s. 76 of the Finance Act. Appellant has relied upon several judgments of High Court and Tribunal and submitted that no penalty u/s. 76 is required to be imposed once penalty u/s. 78 has been imposed. Ld. AR. On the other hand relied upon the judgments of Delhi High Court in the case of British Airways PLC Vs. Commissioner ST (supra), and Two member judgment of CESTAT Bench Delhi in the case of British Airways PLC Vs. Commissioner ST (supra). In this judgment CE....

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....below:-    "4. I have considered the submissions of both sides and I find that in this case the very fact that amounts were collected by mentioning the same on the reverse side of the invoice and not paid service tax on the same clearly amounts to misdeclaration of value and suppression of facts on the part of the appellant. In view of the decision of the Hon'ble High Court in the case of Neminath Fabrics Pvt. Ltd. the contention that show-cause notice was issued after two years, would not be of any help to the assessee. As regards penalties under Sections 76 & 78 of the Finance Act, 1994, I have to observe that there are two High Court decisions against the appellant that of Kerala and Delhi, whereas decision cited by learned ....