TaxTMI 
TaxTMI 
2017 (5) TMI 705
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....ion of records of the appellant as well as during the course of audit of the accounts of the appellant by the officers. The Revenue entertained a view that the appellants did not discharge service tax liability properly for the period 10.09.2004 to 31.03.2008 and also for the year 2008-09. Two separate show cause notices were issued to demand and recover service tax liabilities and also to impose penalties on the appellants. The appellants have paid the service tax liability and are not contesting the case on merits. In both the appeals, the appellants contested the imposition of penalties under both the Sections 76 and 78 for the period upto 9.5.2008.The appellants contested the denial of cenvat credit of Rs. 12,27,678/- vide impugned orde....
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....TR 417 (Delhi). It was further submitted that the Tribunal in the case of BCCI - 2015 (37) STR 785 (Tribunal-Mumbai) held that prior to 10.05.2008, penalty under both Sections 76 and 78 can be imposed in the same case. The said decision of the Tribunal has been affirmed by the Hon'ble Supreme Court reported in 2015 (37) STR J-176 (SC), by dismissing the civil appeal filed by BCCI. Regarding issue of show cause notice proposing penalties under both sections, ld. AR submitted that legal provisions, as available during the period of offence, are rightly invokable as the amendment in the provisions of Section 78 is prospective from 10.05.2008 and prior to that, the provisions, as applicable, are righty invoked by the lower authorities. Ld. AR r....
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....al 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 even if the offences are committed in the course of same transactions or arise out of the same Act, penalty would be imposable both under Section 76 and 78 of the Act. We are in agreement with the aforesaid rule. 16. No doubt, Section 78 of the Act has been amended by the Finance Act, 2008 and the amendment provides that in case where penalty for suppressing the value of taxable service under Section 78 is imposed, the penalty for failure to pay service tax under Section 76 shall not apply. Wit....
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....gh 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 appellate authority, including the Tribunal, has chosen to impose the penalty under both the Sections. Since the penalty under both the Sections is imposable as rightly held by Kerala High Court in Krishna Poduval (supra), the appellant cannot contend that once penalty is imposed under Section 78, there should not have been any penalty under Section 76 of the Finance Act. 8. Further, we also note that similar view taken by the Tribunal in the case of BCCI (supra) was affirmed by the Hon'ble....