TMI Blog2019 (5) TMI 238X X X X Extracts X X X X X X X X Extracts X X X X ..... it is the settled position that penalties under both Sections 76 and 78 are not exigible and therefore, levy of penalty in this case under both Sections 76 78 is clearly without any authority of law. The penalty u/s 77 is upheld. Appeal allowed in part. - Appeal No.ST/40770/2013, ST/40777/2013 - Final Order Nos. 40753-40754/2019 - Dated:- 1-5-2019 - Shri Madhu Mohan Damodhar, Member (Technical) And Shri P. Dinesha, Member (Judicial) Ms. S. Sridevi, Advocate For the Appellant Shri K. Veerabhadra Reddy, ADC (AR) For the Respondent ORDER Per P. Dinesha The facts of the case are that appellants were inter alia rendering services of segregati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d a certificate was required to be issued to the effect that the cylinders had undergone various tests. The impugned activity therefore cannot be classifiable under MMRS as held in the impugned order and therefore not liable for payment of Service Tax. ii) Reliance is placed on the case law of Harshita Handling Vs. Commissioner of Central Excise, Bhopal 2010 (19) STR 596, affirmed by Hon ble Supreme Court iii) Further reliance is placed on the following decisions a) Sri Ayyappan Cylinders 2017 (6) TMI 579 CESTAT Chennai b) Pressure Vessels and Equipments Testing Enterprises 2013 (1) TMT 683 Cestat, Chennai c) RK Cylinders 2018 (9) TMI 187 Cestat, Banga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pugned order has confirmed the demand of ST under GTA services. Appellants are not liable for payment of ST, as they used their own vehicle for transportation and have not acted as Goods Transport Agency. The appellant also submits that the liability for the payment of Service tax under GTA services would fall on the service recipient and as such the appellant is not liable to pay service tax MSPL Ltd. Vs. CCE, Belgaum 2009 (13) STR 554). vii) They have not suppressed any fact from the department. The appellant had obtained registration and started paying ST from 04.06.2007 and also filing periodical returns. As such, the allegation of suppression is not at all maintainable. Also, they had furnished the partnership deed, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. Heard both sides. 5.1 The testing of LPG cylinders, under a Statute, is no doubt a statutory obligation, but the appellant is a private organization and its appointment by statutory notification is not there. Thus, the appellant is only carrying out an outsourced job and in the absence of any document as to the statutory notification appointing it, we are unable to accept the appellant s arguments. We may also have to observe that when tax payment is a statutory obligation, each tax payer cannot claim that his/its activities to be exempt because of his/its discharge of statutory obligation. It may be a duty cast on each tax payer, but the same cannot be equated to be an exempted activity. For the above reasons we do not a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erfere with the findings of the lower authorities. For these very reasons and factual position, we are of the opinion that the case laws relied on by the appellant are not applicable. 6. With regard to the penalties imposed under Section 76 and 78, however, we note that Section 76 and 78 are mutually exclusive and hence there cannot be any penalty under both sections. Facts are very clear right from the stage of SCN and we are also clear that it was a bonafide mistake on the part of the appellant to entertain a belief that its activities were statutory obligations, exempt from tax, for which they had also relied on a few decisions. In any case, it is a pure question of law and hence we do not see any case of suppression or fr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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