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TMI Blog2020 (11) TMI 581X X X X Extracts X X X X X X X X Extracts X X X X ..... was amended w.e.f. 10.05.2008 only to provide that penalty under Section 76 need not be imposed if penalty under Section 78 is imposed; the Amendment was not with retrospective effect. Tribunal in the following cases has held that before 10.05.2008 penalty is imposable under both Sections: * Bajaj Travels Ltd. Vs CST, 2012 (25) STR 417 (Del.). * CCE Vs Gondwana Engineers Ltd., 2018 (12) TMI 94- CESTAT MUMBAI. * Kusalava Finance Ltd. Vs CCE, Guntur, 2018 (8) TMI 628-CESTAT HYDERABAD. * CCE, Bhopal Vs Akansha Sales Promoters (I) Pvt. Ltd., 2018 (7) TMI 100 CESTAT NEW DELHI. * CCE, Raipur Vs Navbharat Explosives Co. Ltd. and (Vice-Versa), 2018 (2) TMI 834 -CESTAT NEW DELHI. 3. None for the respondents. However, we find, from the cross-objections, that the appellants have pleaded that even before the amendment w.e.f. 10.05.2008 penalties under Section 76 & 78 are not imposable. They relied upon the following cases: * The Financiers Vs CCE, Jaipur, 2007 (8) STR 7 * Opus Media Entertainment Vs CCE, Jaipur, 2007 (8) STR 368 4. We have gone through the records of the case and rival submissions in this regard. In view of the case laws cited supra we find that Revenue has mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ionerate, the duty evasion would have remained not detected. We find that though the Learned Commissioner establishes mens rea on the part of the appellants refrained from imposing penalty under Section 76 citing the case law referred by the respondents as above. However, as we notice above, Courts and Tribunals have been consistently holding that separate penalties are imposable under both Sections. In view of the same, the Revenue's appeal is allowed and a penalty of Rs. 100 per day on the Service Tax confirmed on the respondents is imposed in terms of Section 76 of the Finance Act, 1994. The cross-objections filed by the respondents are also accordingly disposed of. (Order pronounced in the open court on 02.11.2020) (P. ANJANI KUMAR) TECHNICAL MEMBER Anil Choudhary: 6. As I am unable to agree with the view of learned brother Shri P. Anjani Kumar, Member (Technical), I hereby record my separate order. 7. Considering the contentions of the parties in order to appreciate the facts and circumstances, I take notice of the provisions of Section 76, 78 and 80 of the Finance Act which are as under: "76. Penalty for failure to pay service tax Any person, liable to pay service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vided also that in case where the service tax determined to be payable is increased by the Commissioner (Appeals), the Appellate Tribunal or, as the case may be, the court, then, the benefit of reduced penalty under the first proviso shall be available, if the amount of service tax so increased, the interest payable thereon and twenty five percent of the consequential increase of penalty have also been paid within thirty days of communication of the order by which such increase in service tax takes effect. Provided also that if the penalty is payable under this section, the provisions of section 76 shall not apply. (Introduced w.e.f. 10.5.2008) "Explanation.-For the removal of doubts, it is hereby declared that- (1) The provisions of this section shall also apply to cases in which the order determining the service tax under sub section (2) of section 73 relates to notices issued prior to the day on which the Finance Bill, 2003 receives the assent of the President; (2) Any amount paid to the credit of the Central Government prior to the date of communication of the order referred to in the first proviso or the fourth proviso shall be adjusted against the total amount due fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, I find Hon'ble Kerala High Court have also observed that the assessing officer may in his wisdom has discretionary power not to impose penalty under Section 76 where penalty under Section 78 have been imposed. 10. I further find that Hon'ble Karnataka in CST, Bangalore Vs. Motor World - 2012 (27) STR 225 considered the issue of imposition of simultaneous penalty under Section 76 and 78 of the Finance Act, have held that once the ingredient of Section 78 has been established and there is no reasonable cause for failure, then the authority has to impose a minimum penalty equal to the amount of service tax sought to be evaded. Here there is no discretion which is vested with the authority. The discretion is only confined to impose penalty above the minimum limit and less than the maximum provided. In the light of the scheme of the provisions of Section 76 and 78, they operate in mutually exclusive area, for the same reason, the question of imposing penalty both under Section 76 and 78 would not arise. The penalty is to be imposed either under Section 78 or under Section 76 and certainly not under both the provisions. The Karnataka High Court differed with the view taken by the Ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th effect from 10.5.2008 was clarificatory amendment in nature and did not create liability for the first time. Even without its aid, it was plausible view that situation envisaged under Section 76 ibid, exclude cases covered under Section 78. The Gujarat High Court also considered the ruling of Hon'ble Delhi High Court in Bajaj Travels Ltd. (supra) and held that simultaneous penalty under Section 76 is not imposable along with penalty under Section 78. 14. I further find that the wisdom of learned Commissioner in not imposing penalty under Section 76, in view of penalty having been imposed under Section 78 cannot be questioned, in view of the provisions of Section 80 of Finance Act, 1994. I further hold that penalty is not imposable simultaneously under Section 76 and Section 78 as both the Sections are mutually exclusive dealing with different types of default. Accordingly, I uphold the impugned order in original and dismiss this appeal by Revenue. Cross objections filed by respondent also stands disposed of. The respondent- assessee shall be entitled to consequential benefit, if any in accordance with law. (Anil Choudhary) Member (Judicial) DIFFERENCE OF OPINION 15. In view ..... X X X X Extracts X X X X X X X X Extracts X X X X
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