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TMI Blog2010 (7) TMI 255X X X X Extracts X X X X X X X X Extracts X X X X ..... section 76 of the Act. In such situation, even if reasoning given by the appellate authority that if penalty under section 78 of the Act was imposed, penalty under section 76 of the Act could never be imposed may not be correct, the appellate authority was within its jurisdiction not to levy penalty under section 76 of the Act having regard to the fact that penalty equal to service tax had alread ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dealer and is service provider of taxable service under the Act. Show Cause Notice was given by the authority alleging failure on its part to file return and pay service tax on the taxable value for the period from 2001-02 to 2003-04. After consideration, order in original dated 16.10.2007 was passed adjudicating the amount of service tax and also levying penalty under section 76 of the Act for n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Excise v. Krishna Poduval, 2006(1) STR 185, holding that incident of imposition of penalty under different sections was distinct and even without suppression, there could be failure to pay tax or to file return. 5. Learned counsel for the assessee on the other hand submitted that there has been an amendment to section 78 by Finance Act, 2008 w.e.f 10.5.2008 adding a Proviso to the effe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regard to the fact that penalty equal to service tax had already been imposed under section 78 of the Act. This thinking was also in consonance with the amendment now incorporated though the said amendment may not have been applicable at the relevant time. Moreover, the amount involved is Rs.51026/- only. 7. In view of this position, we are unable to hold that any substantial question of law ar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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