AI Drafter 
TaxTMI 
TaxTMI 
2016 (1) TMI 209
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....&L account. Therefore, a Show Cause Notice dated 20/04/2004 had been issued to the appellant proposing the demand of service tax amounting to Rs. 12,59,510/- for the period 16/10/1998 to 31/12/2003. The demand proposed in the Show Cause Notice was confirmed by the Adjudicating Authority vide Adjudication Order dated 10/11/2008. In addition the Adjudicating Authority also demanded the interest under Section 75 and imposed the penalty under Section 76, a penalty of Rs. 500/- under Section 75A and a penalty of Rs. 6,25,118/- under Section 78 of the Finance Act, 1994 were also imposed. Aggrieved by the said order, the appellant filed an appeal before the Commissioner (Appeals) who rejected the appeal vide the impugned order, therefore, the appellant is before me. 3. Shri S.S. Gupta, Ld. C.A. appearing on behalf of the appellant submits that though the appeal was filed for setting aside the impugned order, but with the instruction of his client, the appellant is not contesting demand of service tax and interest thereupon, which was already paid by the Appellants. However the penalties under Section 76 & 78 are being contested. As regard penalty under Section 76, he submits that when ....
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.... Board Of Control For Cricket In India Vs. Commr. of S.T., Mumbai-I - 2015 (37) S.T.R. 785 (Tri.-Mum.), according to which the penalty under section 76 as well as 78 can be imposed simultaneously. As regard the issue whether the option to pay 25% penalty in terms of proviso to Section 78 can be allowed after 30 days of adjudication order, the Hon'ble High Court of Bombay in the case of CCE, Raigad Vs. Castrol India Limited - 2012 (286) E.L.T. 194 (Bom.), it was held that the period of 30 days provided under the proviso to Section 11AC of Central Excise Act, cannot be extended accordingly to the pay 25% penalty beyond the time proscribed under the proviso to Section 11AC is not permissionable in law. 5. We have carefully considered the submissions made by both the sides. 6. As per the submissions of the Ld. C.A., the issues to be decides by me are as under:- (i) Once penalty under Sec 78 has been imposed whether penalty under Sec 76 can be imposed simultaneously. (ii) If the option of payment of 25% penalty in terms of proviso to Sec 78 has not been given in the adjudication order, whether it can be permitted at the later stage after 30 days of the adjudicati....
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....sessee if the assessee proved that there was reasonable cause for the said failure in respect of one or both the offences. However, no circumstances are either pleased or proved for invocation of the said Section also. In any event, we are not satisfied that an assessee who is guilty of suppression deserves such sympathy. As such, we are of opinion that the learned single Judge was not correct in directing the 1st appellant to modify the demand withdrawing penalty under Sec 76. Therefore, the judgment of the learned Single Judge, to the extent it directs the first appellant to modify Ext. P1 by withdrawing penalty levied under Sec 76, is liable to be set aside and we do so. The cumulative result of the above findings would be that the Writ Petitions are liable to be dismissed and we do so. However, we do not make any order as to costs." 22. With due respect, we are of the view that the said judgment runs counter to the express provisions contained in Sections 76 & 78. In fact, in support of out contentions, we would like to point out that by Finance Act, 2008 (18 of 2008) which came into force from 10-5-2008, the Parliament has made the legal position clear by introducing ....
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.... been imposed under Sec 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 in Rs. 51026/- only. Commr. of C. Ex. Vs. First Flight Courier Ltd.- 2011 (22) STR 622 (P & H) 4. Only point which has been urged by learned counsel for the appellant is that after 10-5-2008, there is an amendment providing that penalty under Sec 78 has been levied but for the period prior thereon, penalty could be levied under both Sections. The Commr. (Appeals) as well as the Tribunal erred in deleting the penalty under Sec 76 by assuming that simultaneously penalty under both the provisions could not be levied for the period in dispute. 5. We are unable to accept the submission. Sec 76 provides for penalty for failure to pay the amount while Sec 78 provides for penalty for suppressing the taxable value. Sec 78 is, thus, more comprehensive and provides for higher amount. Even if technically, the scope of Sections 76 and 78 is different, penalty under Sec 76 may not be justified if penalty had already been imposed under Sec 78. The matter ....
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....Section, the proviso to Sec 76 shall not apply. Thereby no penalty could be imposed both under Sections 76 as well as 78. therefore, in this case the penalty is to be construed under Sec 78. To that extent the appeal succeeds. Commr. of C. Ex., Bhopal Vs. M/s. Hemkunt Petroleum Ltd. - 2015-TIOL-922-CESTAT-DEL 2. We have considered the contentions of Revenue. There is no dispute about the fact that the penalties under Sections 76 and 78 of the Act, became mutually exclusively only with effect from 16-5-2008 when proviso was added to Section 78 to the effect that if the penalty was payable under Sec 78 provisions of Sec 76 shall not apply. That having been said, it has to be seen that with effect from 16-5-2008, penalties under Sections 76 and 78 ibid were made mutually exclusive in-as-much-as if the penalty under Sec 78 was imposed, the penalty under Sec 76 was made unimposable. This amendment with effect from 16-5-2008 in a way reflected the refinement of penal provisions. Indeed it has been held by Punjab & Haryana High Court in the case of CCE Vs. M/s. Pannu Propery Dealers, Ludhiana [2011 (24) STR 173 (P & H)] = 2010-TIOL-874-HC-P&H-ST that "even if technically....