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TMI Blog2013 (4) TMI 582X X X X Extracts X X X X X X X X Extracts X X X X ..... 08) which came into force from 10-5-2008, the Parliament has made the legal position clear by introducing a proviso to Section 78. It reads as under : provided also that if the penalty is payable under this section, the provision of Section 76 shall not be attracted. In view of the above judgment, it is clearly held that amendment carried out in Section 78 of the Finance Act, 1994 is only clarificatory in nature and the position of not imposing penalty under Section 76, when penalty under Section 78 was already imposed, will hold good for the period prior to the amendment also. Based on the above observations it is held that penalty under Section 76 of the Finance Act, 1994 is not imposable once penalty under Section 78 was imposed and 25% ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f tax:- (i) Synergy Audio Visual Work Shop Pvt. Ltd. Vs. CCE [2008 (10) STR 578 (Tri.)] (ii) Alpa Management Consultants Pvt. Ltd. [2007 (6) STR 181 (Tri.] (iii) Adage Outdoor Advertising (P) Ltd. Vs. CCE [2011 (21) STR 91 (Tri. Bang.) In view of the above appellant emphasised that penalties under Section 76, 77 78 are not imposable. 3. On the other hand Shri K. Sivakumar, ld. A.R. reiterated the stand of the department in the order in revision that penalties are imposable. 4. There is no dispute so far as payment of service tax and interest is concerned as the appellant has only agitated imposition of penalties under Section 76, 77 78. It is also observed from the order in original dated 06.02.09 passed by the adjudic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inance Act, 1994 is concerned it is relevant to glance through paragraphs 21, 22 23 of the Karnataka judgement in the case of Commissioner of Service Tax, Bangalore Vs. Motor World (supra) reproduced below:- 21. When once the ingredients of Section 78 are established and there is no reasonable cause for failure, Section 80 is not attracted. Then the authority has to impose a minimum penalty of the amount of Service tax sought to be evaded and the maximum is double the said amount. Here, there is no discretion, which is vested with the authority. The discretion is only confined to impose a penalty above the minimum and less than the maximum provided for under the Act. It is in that context, in the light of the scheme of this provision t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ences are distinct and separate. Perhaps invoking powers under Section 80 of the Finance Act, the appropriate authority could have decided not to impose penalty on the assessee if the assessee proved that there was reasonable cause for the said failure in respect of one or both of the offences. However, no circumstances are either pleaded or proved for invocation of the said section also. In any event, we are not satisfied that an assessee who is guilty of suppression deserves such sympathy. As such, we are of opinion that the learned Single Judge was not correct in directing the 1st appellant to modify the demand withdrawing penalty under Section 76. Therefore, the judgment of the learned Single Judge, to the extent it directs the first ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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