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2017 (4) TMI 804 - CESTAT NEW DELHI

2017 (4) TMI 804 - CESTAT NEW DELHI - TMI - Penalty - imposition of simultaneous penalty u/s 76 and 78 of FA - The period involved in this case is from 01.07.2003 to 31.03.2009 - Held that: - Section 78 ibid was amended w.e.f. 10.05.2008 wherein the 5th proviso was appended thereto providing that if the penalty is payable under Section 78, provisions of Section 76 shall not apply. The effect of such amendment is that simultaneous penalty under both section 76 and 78 ibid cannot be imposed - such .....

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] - Dated:- 6-1-2017 - Mr. S.K. Mohanty, Member (Judicial) And Mr. B. Ravichandran, Member (Technical) Ms. Pravesh Khandelwal (Advocate) for the Appellant Mr. Sanjay Jain, (DR) for the Respondent Per S.K. Mohanty: These appeals are directed against the impugned order dated 21.10.2011 passed by the Commissioner (Adjudication) Service Tax, New Delhi, whereby service tax demand of ₹ 1,12,54,068/- along with interest was confirmed against the appellant. Penalty of ₹ 2 crore was imposed u .....

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eposited by the appellant. He, further submits that since 25% penalty has been deposited under Section 78, the balance amount of penalty should be waived. With regard to imposition of penalty both under Section 76 and 78, the Ld. Advocate submits that simultaneous penalty under both the provisions cannot be imposed and to support such stand the Ld. Advocate has relied on various decisions by the Tribunal. • CCE Chandigarh vs Patiala Marketing Services Pvt. Ltd. [2016 (42) STR 507 (Tri. Del. .....

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6 & 78 can be imposed prior to the amendment of Section 78, upto 10.05.2008. The Ld. DR has relied on the judgment of Hon ble Delhi High Court in the case of Bajaj Travels Ltd. vs CST 2012 (25) STR 417 (Del.) and the decision of this Tribunal in the case of Board of Control for Cricket in India vs CST Mum-I 2015 (37) STR 785 (Tri-Mum.) to state that prior to 10.05.2008 penalty can be imposed under both Section 76 and 78 simultaneously. 4. We have heard the Ld. Counsel for both the side and p .....

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in Section 78 vide Finance Act, 2008 w.e.f. 10.05.2008 should have retrospective application or should apply prospectively. With regard to applicability of the said amendment prospectively the Hon ble Delhi High Court in the case of Bajaj Travels Ltd. (supra) have held that such amendment cannot have the retrospective application in absence of any specific stipulation of that effect. Relevant paragraph in the said judgment is extracted herein below. 16. No doubt, Section 78 of the Act has been .....

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of any specific stipulation to this effect. Going by the nature of the amendment, it also cannot be said that this amendment is only clarificatory in nature. We may mention that Punjab and Haryana High Court in its decision dated 12th July, 2010 in STA 13/2010, entitled Commissioner of Central Excise v. M/s. Pannu Property Dealers, Ludhiana [2011 (24) S.T.R. 173 (P & H)] has taken the view that even if the scope of two sections of the Act may be different, the fact that penalty has been levi .....

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