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TMI Blog2013 (5) TMI 701X X X X Extracts X X X X X X X X Extracts X X X X ..... section 78 of the Act. - 113/2011 - A-531/KOL/2012 - Dated:- 27-7-2012 - CORAM: D M Misra, Member (J) Appellant Represented by: Shri Arun Kumar Bhattacharjee, Adv. Respondent Represented by: Shri S Chakraborty, AC (AR) Per: D M Misra: This is an appeal filed against the order in appeal No.18/ST/RA/HAL/2010 dated 19.01.2011. 2. Briefly stated facts of the case are that the appellant had rendered services under the heading 'Business Auxiliary Service' but failed to discharge the Service Tax during the period from 1/4/07 to 31/3/2008. Consequently a show cause notice was issued to them for recovery of S. Tax amounting to Rs.61,566/-, Ed.Cess Rs.1,231/- and S HEd. Cess Rs.615/-.Besides, penalty has been proposed under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that penalty cannot be imposed under both these sections. In this connection, he has referred to the recent judgment of Hon'ble Punjab and Haryana High Court in the case ofCommissioner of Central Excise Vs. First Flight Courier Ltd. - 2011 (22) S.T.R. 622 (P H) . 5. Heard both sides and perused the records. The limited issue in this case is to determine as to whether penalty under Section 76 ought to be imposed in the facts and circumstances of the case besides penalty under Section 78 which has been imposed by the adjudicating Authority and upheld by the Ld. Commr.(Appeal). In support of his order, the Ld. Commr.(Appeal) had recorded the reasoning as below: "I have carefully gone through the case records and considering the gravity o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... follows: "We are unable to accept the submission. Section 76 provides for penalty for failure to pay the amount while Section 78 provides for penalty for suppressing the taxable value. Section 78 is, thus, more comprehensive and provides for higher amount Even if technical, the scope of Sections 76 and 78 is different, penalty under Section 76 may not be justified if penalty had already been imposed under Section 78. The matter was considered by this Court in STA No. 13 of 2010 (Commissioner of Central Excise Vs. M/s. Pannu Property Dealers, Ludhiana) decided on 12/7/2010 wherein it was observed:- "We are of the view that even if technically, scope of sections 76 and 78 of the Act may be different, as submitted on behalf of the revenue, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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