TMI Blog2012 (7) TMI 164X X X X Extracts X X X X X X X X Extracts X X X X ..... nder the provisions of Section 76 shall be attracted - show cause notice is issued to the appellant on 18.6.2008 and whereas the amendment to Section 78 was carried out on 10.05.2008 – Penalty u/s 76 not sustainable – In favor of assessee - ST/664 of 2010 - - - Dated:- 29-6-2012 - Mr. M.V. Ravindaran, J. For Appellant : Shri Nitish Jain, Chartered Accountant For Respondent : Shri Rajendra Nagar, AR Per : Mr. M.V. Ravindaran; This appeal is directed against the Order-in-Appeal No. 286/2010(STC)/MM/Commr(A)/Ahd dt. 15.9.2010 2. On careful consideration of the submissions made by both sides and perusal of appeal papers, I find that in this appeal the appellant is charged with non-payment of service tax liability u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of CCE vs. Motor World -- 2012-TIOL-418-HC-KAR-ST and also in the case of First Flight Courier Limited 2011 (22) STR 622 (P H) and again in the case of United Communication Udupi 2011-TIOL-802-HC-KAR-ST, for this proposition. It is also his submission that the Tribunal decision in the case of West Minister International P. Limited [2007] 11 STT 157 (New Delhi -CEGAT) would indicate that penalty can be imposed only under the provisions, which are in existence at the time of issuance of show cause notice. 4. Learned SDR on the other hand would submit that the judgment of the Hon'ble High Court of Delhi in the case of Bajaj Travels Limited would be applicable wherein their Lordships have held that, simultaneous penalties can be imposed und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s than the maximum provided for under the Act. It is in that context, in the light of the scheme of this provision that Sections 76 and 78 operate in a mutually exclusive area. For the same reason the question of imposing penalty both under Section 76 and 78 would not arise. The penalty is to be imposed either under section 78 or under Section 76 and certainly not under both the provisions. In this connection in the case of Assistant Commissioner of Central Excise vs. Krishna Poduval reported in 2009-TIOL-77-HC-KERALA-ST at Para 11, it held as under:- 11. The penalty imposable under Section 76 is for failure to pay service tax by the person liable to pay the same in accordance with the provisions of Section 68 and the rules made there u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant to modify Ext. P1 by withdrawing penalty levied under Section 76, is liable to be set aside and we do so. The cumulative result of the above findings would be that the Writ Petitions are liable to be dismissed and we do so. However, we do not make any order as to costs. 22. With due respect, we are of the view that said judgment runs counter to the express provisions contained in Sections 76 and 78 in fact, in support of our contentions, we would like to point out that by Finance Act, 2008 (18 of 2008) which came into force from 10.5.2008, the Parliament has made the legal position clear by introducing a proviso to Section 78. It reads as under:- Provided also that if the penalty is payable under this Section, the provision of S ..... X X X X Extracts X X X X X X X X Extracts X X X X
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