TMI Blog2012 (11) TMI 742X X X X Extracts X X X X X X X X Extracts X X X X ..... ERALA HIGH COURT] the provisions (Sections 76 and 78) are mutually exclusive and that, while Section 76 does not require mens rea, Section 78 involves evasion with guilty mind thereof. As the two penalties can be simultaneously imposed. Thus the conclusion reached by the Commissioner (Appeals) is inconsistent with his reasoning - in favour of revenue. - ST Appeal No. 2127/2010 - - - Dated:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch reads as follows: 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 thereunder, whereas Section 78 relates to penalty for suppression of the value of taxable service. Of course these two offences may arise in the course of the same transaction, or from the same act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d failure in respect of one or both of the offences. However, no circumstances are either pleaded or proved for invocation of the said Section also. In any event we are not satisfied that an assessee who is guilty of suppression deserves such sympathy. As such, we are of opinion that the learned Single Judge was not correct in directing the 1st appellant to modify the demand withdrawing penalty un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appropriate service tax. Against these penalties, the assessee preferred an appeal to the Commissioner (Appeals) and the latter set aside the Section 76 penalty on the ground that both the penalties could not be simultaneously imposed. The reasoning of the appellate authority is that both the provisions (Sections 76 and 78) are mutually exclusive and that, while Section 76 does not require mens re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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