TMI Blog2011 (4) TMI 332X X X X Extracts X X X X X X X X Extracts X X X X ..... al liability under Section 78 of the Act if it paid the said amount within 30 days of the said judgment. The assessee had already paid tax and interest. I find that though the K.P. Pouches (P) Ltd. case dealt with Section 11AC of the Central Excise Act, the ratio of the decision is applicable also to service tax matters since Section 78 of the Finance Act is identically worded as Section 11AC of the Central Excise Act. I find that the assessee has already paid 25% of the penalty. It is ordered that the assessee will have no further liability to penalty under Section 78 of the Act in view of the judgment in the case of K.P. Pouches (P) Ltd. by the Hon ble High Court of Delhi. The appeal is thus allowed in part. - ST/99/11 - - - Dated:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bar imposition of penalty both under Section 76 and 78 simultaneously. 3. Reiterating the grounds taken in the appeal, the ld. Counsel for the appellants submits that penalties under both Sections 76 and 78 of the Act were not being simultaneously imposed even prior to 09/05/2008 and relies on a line of decisions. He submits that the assessee had already paid the tax confirmed along with interest and also paid 25% of the penalty imposed under Section 78 of the Act (pursuant to the impugned order). He prays that the penalty imposed under Section 76 of the Act may be waived in terms of the Section 80 and orders may be passed restricting the liability of the assessee under Section 78 to 25% of the tax demanded. In this connection he relies ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... penalty. It is submitted that in view of the above reading of the provisions in the case of Krishna Poduval decision by the Kerala High Court, the Tribunal can waive penalty imposed on the assessee. 4. Ld. DR relies on the judgment of Hon ble High Court of Kerala in the case of Krishna Poduval (supra) in support of the plea that penalties could be imposed for same offence under both Sections 76 and 78 of the Act if the ingredients required for imposing such penalties existed. In the case on hand, penalties under both the two sections were justified as per the Commissioner s(Appeals) order. She relies on the text of the Section 76 in support of the argument that penalty under Section 76 in addition to penalty under Section 78 was appropr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Kerala High Court had held in the Krishna Poduval case as follows: 11. .. . incidents of imposition of penalty are distinct and separate and even if the offences are committed in the course of same transaction or arises out of the same act, the penalty is imposable for ingredients of both the offences. There can be a situation where even without suppressing value of taxable service, the person liable to pay service tax fails to pay. Therefore, penalty can certainly be imposed on erring persons under both the above Sections, especially since the ingredients of the two offences are distinct and separate. . . . . Their lordships were dealing with the issue whether penalties under both Sections 76 and 78 were imposable on an asse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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