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TMI Blog2012 (7) TMI 164X X X X Extracts X X X X X X X X Extracts X X X X ..... ity under the category of Management, Maintenance and Repair Services, for the material period 01.04.2004 to 31.03.2007. The demand is raised on the basis of inspection of documents which were called for from the assessee. The appellant before issuance of show cause notice has paid the entire amount of service tax liability, interest and 25% of the penalty imposed under Section 78 of the Finance Act, 1994, within 30 days of the issuance of the adjudication order. Assessee was aggrieved by the adjudication order for imposition of penalty under Section 76 and hence took the matter in appeal. The first appellate authority also did not agree with the contentions raised by the appellant for imposition of penalty under Section 76 and confirmed th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e imposed under sections 76 and 78 of the Finance Act, 1994. He would specifically draw my attention to paragraphs 16 and 17 of the said judgment in the case of Bajaj Travels Limited. 5. I have considered the submissions made by both sides and perused the record. 6. The appeal in this case is only towards the penalty imposed on the appellant under Section 76 of the Finance Act, 1994. The appellant has undisputedly accepted the service tax liability, interest thereon and penalty under Section 78 and has discharged the entire liability within 30 days of issuance of adjudication order. It is also undisputed that the show cause notice was issued on 18.06.2008. 7. On this factual matrix, I find that the amendment carried ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 68 and the rules made there under, whereas Section 78 relates to penalty for suppression of the value of taxable service. Of course, these two offense may arise in the course of the same transaction or from the same act of the person concerned. But we are of opinion that the 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 personal liable to pay service tax fails to pay. Therefore penalty can certainly be imposed on erring persons under both the above sections, especially sinc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le under this Section, the provision of Section 76 shall not be attracted. 23. While imposing penalty under Section 76, the question of imposing penalty under Section 78 also will not arise because Section 76 applies to a case where the person has not either registered himself under the Act or having registered himself has not filed the return and not paid tax for the activity which he is carrying on. In such circumstances, the question of service or suppressing or concealment of the value of taxable service would not arise. The amendment brought about is only clarificatory in nature. That was position even before the amendment. It is clear from the express provisions of Section 76 and 78. 8. The above said ratio squarely co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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