TMI Blog2013 (11) TMI 1501X X X X Extracts X X X X X X X X Extracts X X X X ..... , the period involved is 01.04.2006 to 31.03.2011 and show cause notice was issued on 05.07.2011. Proviso to Section 78 of Finance Act, 1994 was introduced with effect from 10.05.2008 and was thus existing on the date of issue of show cause notice - show cause notice was issued when proviso to Section 78 of Finance Act, 1994 was existing, therefore no penalty under Section 76 is imposable when Section 78 of Finance Act, 1994 penalty is imposed - Following decision of ATMA Steels Pvt. Ltd. & Ors Vs. CCE Chandigarh & Ors [1984 (6) TMI 60 - CEGAT, NEW DELHI] - Decided in favour of assessee. - Appeal No.ST/418/2012-SM - - - Dated:- 13-9-2013 - MR. H.K. THAKUR, J. For the Appellant: Shri D.K. Trivedi, Adv. For the Respondent: Shri G.P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hadevi [1985 (20) ELT 120 (Tribunal)] c) Aneja Property Dealer Vs. CCE Ludhiana [2009 (13) STR 266 (Tri-Del)] d) Viking Tours Travels Vs. CST Chennai [2011 (22) STR 69 (Tri-Che.)] e) Prompt Services Vs. CCE Bolpur [2011 (23) STR 523 (Tri-Kolkata) ] 3. Shri G.P. Thomas, (A.R.) appearing on behalf of the Revenue argued that in view of the following case-laws, proviso added to Section 78 w.e.f. 10.05.2008 cannot be given retrospective effect:- a) Anand Dicorators Hirers Vs. CST Ahmedabad [2013 (30) STR 86 (Tri-Ahmd)] b) CCE Vs. Port Officer [2010 (257) ELT 37 (Guj.] c) CCE Mumbai-I Vs. Lal Mining Engg. Works [2007 (215) ELT 167 (SC)] d) CCE Coimbatore Vs. ELGI Equipments Ltd. [2001 (128) ELT 52 (SC)] e) Asstt.Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. With this amendment the legal position now is that simultaneous penalties under both Section 76 and 78 of the Act would not be levied. However, since this amendment has come into force w.e.f. 16th May, 2008, it cannot have retrospective operation in the absence of any specific stipulation to this effect. Going by the nature of the amendment, it also cannot be said that this amendment is only clarificatory in nature. We may mention that Punjab and Haryana High Court in its decision dated 12th July, 2010 in S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat once penalty is imposed under Section 78, there should not have been any penalty under Section 76 of the Finance Act. 18. We, thus, answer question no. 3 against the assessee and in favour of the Revenue holding that the aforesaid amendment to Section 78 by Finance Act, 2008 shall operate prospectively. In view of the above, penalties can be simultaneously imposed under Section 76 and 78 of Finance Act, 1994 for the period prior to 16.05.2008 before its amendment when proviso to Section 78 was added. 5. Another argument taken by the appellant is that the show cause notice was issued in this case after 10.05.2008 when proviso to Section 78 of the Finance Act, 1994 was already existing after its amendment. Appellant has relied upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g on the date of show cause notice will be applicable. In the present appeal, the period involved is 01.04.2006 to 31.03.2011 and show cause notice was issued on 05.07.2011. Proviso to Section 78 of Finance Act, 1994 was introduced with effect from 10.05.2008 and was thus existing on the date of issue of show cause notice. This fact is different from the issue decided by Hon'ble High Court in the case of Bajaj Travels Ltd. Vs. CST (supra). In view of the above judgments relied upon by the appellant in Para 2.1 above, the appeal of the appellant is required to be allowed by holding that as the show cause notice was issued when proviso to Section 78 of Finance Act, 1994 was existing, therefore no penalty under Section 76 is imposable when Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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