2018 (5) TMI 1425

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....L KURESHI) The appeal is filed by the department challenging the judgment of CESTAT dated 13.6.2017 raising the following question for our consideration : "Whether in the facts and circumstances of the case and law, the Hon'ble Tribunal has committed substantial error of law by quashing and setting aside the OIO dated 6/5/2011 holding that simultaneous penalty under section 76 and 78 of th....

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....nder Section 78 is hundred per cent of the amount of the service tax evaded. On the other hand, the penalty under Section 76 which could be imposed is at the fixed amount per day for the entire duration of the failure to deposit the tax which, in any case, would not exceed fifty percent of the service tax payable. 10. The tenor, background and the purpose for which the penalty could be imposed ....

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...., with the introduction of further proviso to Section 78 whenever penalty was imposed under Section 78, no further penalty could be levied under Section 76 of the Finance Act, 1994. 11. In view of the nature of this further proviso and the relevant position of the two statutory provisions both pertaining to penalty, we are convinced that the proviso was in the nature of clarificatory amendment ....