Penalty u/s 78 cannot be imposed with penalty u/s 76 for same offense. Nizam Sugar Factory case applies sans fraud, etc. Demand u/s 73(1) only when no fraud.

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....Penalty u/s 78 of the Finance Act, 1994, cannot be imposed simultaneously with penalty u/s 76 for the same offense. The decision in Nizam Sugar Factory case applies to recurring show cause notices, where ingredients like fraud, collusion, willful mis-statement, or intent to evade duty are not involved. Demand u/s 73(1) can be made only when these ingredients are absent; otherwise, the proviso to Section 73(1) should be invoked. Different yardsticks for imposing penalties u/ss 76 and 78 cannot be adopted. The Commissioner's order refraining from imposing penalty u/s 78 is correct and legal, and the Revenue's appeal is dismissed.....