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2024 (3) TMI 1289 - AT - Service TaxImposition of penalty u/s 76 and 78 of the Finance Act, 1994 - Recovery of service tax - business auxiliary services - payments made by the Appellants to foreign commission agents - period from 2003–04 to 31.12.2007 - HELD THAT:- There is no dispute as regards the fact that the Appellant have paid service tax along with interest upon intimation by the Department. It is the claim of the Appellant that they were under bonafide belief as regards their liability to pay tax and when they were intimated about their obligation, they have discharged the tax liability along with interest there upon. It is found that it is settled legal position as enumerated by the Hon’ble Gujarat High Court in the case of M/S RAVAL TRADING COMPANY VERSUS COMMISSIONER OF SERVICE TAX [2016 (2) TMI 172 - GUJARAT HIGH COURT] that penalty under section 76 and 78 cannot be imposed simultaneously. Similar view has been upheld by this Tribunal in the case of MD ENGINEERS VERSUS C.C.E. & S.T. -VADODARA-I [2023 (8) TMI 903 - CESTAT AHMEDABAD] wherein it was held that the appellant have been imposed penalty under section 76 and 78 simultaneously. The penalty under Section 76 and 78 cannot be imposed simultaneously. Accordingly, penalty under section 76 should not be imposed on the Appellant when they have paid the service tax along with interest whereas penalty under section 78 and other penalties is upheld. The impugned order is modified to the above extent. The appeal is partly allowed.
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