TMI Blog2017 (5) TMI 1204X X X X Extracts X X X X X X X X Extracts X X X X ..... under both the sections i.e. Section 76 and 78 of FA, 1993 - But for the period after 10.5.2008, no penalty u/s 76 can be imposed as already penalty u/s 78 has been imposed. The matter is remanded to the original adjudicating authority to decide the quantum of penalty u/s 76 and 78 for the contraventions pertaining to the period prior to 10.5.2008 as well as for the contraventions pertaining to the period after 10.5.2008 - appeal allowed by way of remand. - Appeal No. ST/3129/2012-SM with ST/CO/4426/2012 - Final Order No. 53176/2017 - Dated:- 27-4-2017 - Mr. Ashok K. Arya, Member (Technical) Shri Krishan Mohan Menon, Advocate - for the appellant Shri K. Poddar, D.R. - for the respondent ORDER Per Ashok K. Arya ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f both sides, it appears that simultaneous penalty under Section 76 and 78 of Finance Act, 1994 prior to 10.2.2008, the day when there was amendment made in Section 78 of Finance Act, 1994 will be imposable. During the period after 10.5.2008 as per the amended provisions of Section 78 if penalty is payabvle under Section 78 penalty under Section 76 of Finance Act, 1994 is not to be imposed. 5. The period involved in this case is 2006-2007 to 2008-2009. Thus the period involves the duration both prior to 10.5.2008 and after 10.5.2008. Therefore , the penalty is liable to be imposed for the offence pertaining to the period prior to 10.5.2008 under both the sections i.e. Section 76 and 78 of Finance Act, 1993. But for the period after 10.5. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Kar.) whereunder it has been held that penalties under both Section 78 and Section 76 of the Finance Act cannot be imposed simultaneously. 7.2 The subject matter has been discussed in detail by the Tribunal in the case of BCCI (supra). The Tribunal in the said case observed as under: 6.11 The appellant has also raised a contention as to whether penalties can be imposed both under Sections 76 and 78 of the Finance Act, 1994, simultaneously. Reliance has been placed on the decision of Industrial Security Protection Services (supra) wherein a Single Member Bench has referred the matter to a Larger Bench in view of the conflicting decisions by the Hon ble Kerala and Karnataka High courts. The Hon ble High Court of Kerala in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is Tribunal does not have jurisdiction to sit on judgment over a decision rendered by a High Court. Therefore, the reference made by a Single Member to a Larger Bench of the Tribunal is of no consequence for imposition of penalties unless and until the decision of the Hon ble High Court is overruled by the Hon ble Supreme Court. Further we note that in the decision rendered by the Hon ble Karnataka High Court, no reasons have been given as to why penalty is not imposable under both Sections 76 and 78 for the period prior to 10-5-2008 . The Hon ble High Court of Karnataka has merely observed that - it is now well settled that the liability cannot be imposed both under Sections 76 and 78 [2012 (26) S.T.R. 304 (Kar.)]. This is only an obite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re in agreement with the aforesaid rule. 7.4 In the light of the above discussions, there is no doubt that for the period prior to 10.5.2008, the penalty under both the Sections 76 and 78 of Finance Act, 1994 are imposable. Therefore, both the penalties under Section 76 and Section 78 of Finance Act imposed for the period prior to 10.5.2008 on the respondent are sustained. 8. However, the penalties imposed do not give separate component in the case of these periods i.e. for prior to 10.5.2008 and after 10.5.2008. Therefore, the matter is remanded to the original adjudicating authority to decide the quantum of penalty under Sections 76 and 78 for the contraventions pertaining to the period prior to 10.5.2008 as well as for the contrav ..... X X X X Extracts X X X X X X X X Extracts X X X X
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