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TMI Blog2015 (4) TMI 780X X X X Extracts X X X X X X X X Extracts X X X X ..... f the revenue, the fact that penalty has been levied under section 78 could be taken into account for levying or not levying penalty under 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 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. Further in the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lties under Sections 76 and 78 of the Act were not mutually exclusive and cited the judgement of the Supreme Court in the case of BCCI Vs. CST, Mumbai-I [2015-TIOL-04-SC-SC-ST], wherein it has been held that the BCCI was liable to pay penalty under Sections 76, 77 and 78 of the Act. They also cited the judgement in the case of ACIT Vs. Krishna Poduval [2006 (1) STR 185 (Ker.)], where Kerala High court held that the incidents of imposition of penalties are distinctively separate under the provisions of Sections 76 and 78 of the Act and also the judgement in the case of Bajaj Travels Ltd. Vs.CST [2012 (25) STR 417 (Del.)], where Delhi High Court also held that prior to 16.05.2008, the two Sections, i.e., 76 and 78 were in operation in two dif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act having 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. Further in the case of CCE Vs. First Flight Courier [2011-TIOL-67-HC-P H-ST] Punjab Haryana High Court held that penalty under Section 76 may not be justified if penalty under Section 78 has been imposed even if technically penalties under both sections could be imposed and that the appellate authority was well within its jurisdiction not to levy penalty under Section 76 having regard to the fact that penalty under Section 78 has been imposed. In the wake of the said judg ..... X X X X Extracts X X X X X X X X Extracts X X X X
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