TaxTMI 
TaxTMI 
2013 (11) TMI 1501
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....i (Adv.), appearing on behalf of the appellant argued that amended proviso added to Section 78 of Finance Act, 1994 is also applicable to the period prior to 10.05.2008 in view of the following judgments: a) 2010 (19) STR 143 (Commissioner Appeals) b) 2009 (14) STR 687 (Tri-Del) c) 2008 (9) STR 481 (Tri-Del) d) 2007 (8) STR 7 (Tri-Del) 2.1 It was further argued by him that as per amended judgment in the case of Jivant Enterprise Vs CST Ahmedabad [2012 (28) STR 582 (Tri-Ahmd)] the amended provision of Section 78 will be applicable to this case as the show cause notice was issued after 10.05.2008. Therefore, proviso added to Section 78 will also be applicable to the period prior to 10.05.2008 when show cause notice is issued after 10.05.....
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....des and perused the case records. So far as simultaneous imposition of penalties for the period prior to 10.05.2008 under Sections 76 & 78 of Finance Act, 1994 is concerned, the issue has since been settled by Delhi High Court in the case of Bajaj Travels Ltd. Vs. CST [2012 (25) STR 417 (Del.)]. The relevant paras 15 to 18 of this judgment are reproduced below:- 15. By their very nature, Sections 76 and 78 of the Act operate in two different fields. In the case of Assistant Commissioner of Central Excise v. Krishna Poduval - (2005) 199 CTR 58 = 2006 (1) S.T.R. 185 (Ker.) the Kerala High Court has categorically held that instances of imposition of penalty under Section 76 and 78 of the Act are distinct and separate under two provisions and ....
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....ct, when the larger penalty had already been imposed under Section 78 of the Act. In this scenario, the appeal of the Revenue against the said view taken by the appellate authority was dismissed holding that appellate authority was within its jurisdiction not to levy the penalty under Section 76 of the Act having regard to the fact that penalty equal to service tax had already been imposed under Section 78 of the Act. This thinking was also in consonance with the amendment now incorporated though the said amendment may not have been applicable at the relevant time. Moreover, the amount involved is Rs. 51,026/- only. The Court, thus, chose not to interfere with the aforesaid discretion of the Tribunal. 17. However, in the instant case, the....
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....a 2 of five member bench judgment was:- (b) for short levy or non-levy which occurred prior to 17-11-1980, should a show cause notice issued after 17-11-1980 invoke rule 10 as it was prior to 17-11-1980 or Section 11A of the Act ? 5.1 The law laid down by the Larger Bench in Para 101 (d) was as followsg:- (d) Recourse can be had to the provisions as prevailing at the time of initiation of proceedings, and the period available would be the one as permissible under the provisions existing at the time of issuance of show cause notice, in spite of the fact that the short-levy or non-levy refers, to the period when different period of limitation was available; and lastly. 5.2 Based on the above law laid down, it has been held by CESTAT in th....