TMI Blog2011 (1) TMI 52X X X X Extracts X X X X X X X X Extracts X X X X ..... Even if technically, the scope of sections 76 and 78 is different, penalty under Section 76 may not be justified if penalty had already been imposed under Section 78. - STA No. 48 of 2010 - - - Dated:- 28-1-2011 - Adarsh Kumar Goel and Ajay Kumar Mittal, JJ Sukhdev Sharma, Adv., for the Appellant None for the Respondent JUDGEMENT Adarsh Kumar Geol: 1. This appeal has been prefe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e tax under the provisions of the Act. According to the department, there was short payment of service tax to the extent of Rs.44,858/- for the period from 1.4.2002 to 31.3.2005 and on that account after issuing show cause notice, demand for tax was confirmed and penalty under Sections 76 and 78 of the Act was imposed. On appeal, while the demand of service tax was upheld, penalty under Section 78 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 76 by assuming that simultaneously penalty under both the provisions could not be levied for the period in dispute. 5. We are unable to accept the submission. Section 76 provides for penalty for failure to pay the amount while Section 78 provides for penalty for suppressing the taxable value. Section 78 is, thus, more comprehensive and provides for higher amount. Even if technically, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed may not be correct, the appellate authority was within its jurisdiction not to levy penalty under section 76 of the Act having regard to the fact that penalty equal to service tax had already been imposed under section 78 of the Act. This thinking was also in consonance with the amendment now incorporated though the said amendment may not have been applicable at the relevant time. 6. Invie ..... X X X X Extracts X X X X X X X X Extracts X X X X
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