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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 ..... the Finance Act, 1994 have been imposed. Appellant filed appeal on the ground that 25% penalty imposed under Section 78 of the Finance Act, 1994 has already been deposited by them and therefore penalty under Section 76 & 77 of the Finance Act, 1994 are not attracted. They relied upon the following judgments: (i) CCE Bangalore Vs. Motor World [2012 (27) STR 225 (Kar.)] (ii) CCE Vs. Pannu Property Dealers, Ludhiana [2011 (24) STR 173 (P & H)] 2. It was further argued that since the demands were raised on the basis of comparison made between the data mentioned in the income tax returns/balance sheets and ST-3 returns which according to the following judgments cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... )]. Since 25% of penalty under Section 78 has already been paid by the appellant and no such option was extended to the appellants in the orders passed by the lower authorities, the bench hold that imposition of 25% of penalty paid under Section 78 of the Finance Act, 1994 is appropriate and no further penalty under Section 78 of the Finance Act, 1994 is recoverable. 5. So far as imposition of penalty under Section 77 of the Finance Act, 1994 is concerned it is observed that the same is imposable for not complying with the procedures prescribed under the Service Tax Law. Therefore penalty of Rs. 1000/- has been correctly imposed by Commissioner, Vadodara-II under OIR dated 31.01.11. So far as imposition of penalty under Section 76 of the F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whereas Section 78 relates to penalty for suppression of the value of taxable service. Of course, these two offences may arise in the course of the same transaction, or from the same act of the person concerned. But we are of opinion that the incidents of imposition of penalty are distinct and separate and even if the offences are committed in the course of same transaction or arises out of the same act, the penalty is imposable for ingredients of both the offences. There can be a situation where even without suppressing value of taxable service, the personal liable to pay Service tax fails to pay. Therefore, penalty can certainly be imposed on erring persons under both the above sections, especially since the ingredients of the two offence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 76 shall not be attracted. 23. While imposing penalty under Section 76, the question of imposing penalty under Section 78 also will not arise because Section 76 applies to a case where the person has not either registered himself under the Act or having registered himself has not filed the return and not paid tax for the activity which he is carrying on. In such circumstances, the question of finding fault with the returns, which are filed furnishing inaccurate value of such taxable service or suppressing or concealment of the value of taxable service would not arise. The amendment brought about is only clarificatory in nature. That was the position even before the amendment. It is clear from the express provisions of Section 76 and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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