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TMI Blog2017 (10) TMI 804X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee has not discharged the service tax liability during the period 01/02/2066 to31/08/2006. Therefore, a show-cause notice dt. 20/08/2007 was issued to the assessee demanding service tax of Rs. 26,68,038/- being service tax on taxable services provided by them during the period 01/02/2006 to 31/08/2006 under proviso to Section 73(1) of the Act, interest under Section 75 and penalty under Section 76, 77 and 78 of the Act. The adjudicating authority while deciding the case has observed that the assessee had deliberately suppressed the facts from the department with in intention to evade service tax payment as is evident as the assessee has neither filed the ST-3 returns nor declared the service tax liability by any other means. Therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... produce para 4.3 and 4.4 from the impugned order wherein the Commissioner(Appeals) has given legal reasoning, which are as under:- 4.3. As regards departments contention that penalties under Section 76 should also have been imposed, I am disinclined to agree with the same. The decision of the High Court of Punjab & Haryana in the case of CCE Vs. First Flight Couriers Ltd. [2011(922) STR 622 (P&H)] clarifies the issue quite substantially. The relevant portion of the same is reproduced below:- Section 76 provides for penalty for failure to pay the amount while Section 78 provides for penalty for suppressing the taxable value. Section 78 is, thus, more comprehensive and provides for higher amount. Even if technically, the scope of Sections ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are imposed under Section 78 cannot fall in respect of the same Service tax evaded for a double penalty under Section 76 also, these two provisions are mutually exclusive and the cases where guilty mind does not exist will fall under Section 76 while those where such mens rea is required, will fall under Section 78. Therefore, there is no scope for imposing double penalty, i.e., both under Sections 78 and Section 76, when a person is found guilty of evasion by reason of suppression or concealment etc. and penalty is imposed under Section 78. In cases where penalty under Section 78 is imposed, therefore, no penalty can be imposed also under Section 76 of the Act. 6. In view of my discussion above and the fact that the Commissioner(Appeals) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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