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TMI Blog2017 (5) TMI 1204X X X X Extracts X X X X X X X X Extracts X X X X ..... s (ii) Revenue started proceedings against the respondent demanding service tax not paid on External Commercial Borrowings (ECB) under the category of Banking and Financial Service, falling under Section 65(105)(zm) of the Finance Act, 1994. (iii) After receipt of the Show Cause Notice (SCN) the respondent deposited said service tax demand of Rs. 8,52,299/- and interest of Rs. 1,70,284/- 2.1 The Show Cause Notice was adjudicated by the Order-in-Original dated 25.10.2011 whereunder the demand of service tax of Rs. 8,52,299/- along with equivalent penalty was sustained. The Order-in-Original dated 25.10.2011 also imposed separate penalty of Rs. 200/- for every day during which the failure to pay service tax continues or 2% of such tax per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... STR 210 (Guj.) saying that if penalty was payable under Section 78, another penalty under Section 76 of the Finance Act shall not apply. 7. On the other hand, ld. Counsel for the Revenue submits that both penalties can be imposed and cites in support following decisions: (a) Bajaj Travels Ltd. Vs. CST - 2012 (25) STR 417 (Del.) (b) Assistant Commissioner of Central Excise Vs. Krishna Poduval - 2006 (1) STR 185 (Kar.). (c) Board of Control for Cricket in India (BCCI) Vs. CST, Mumbai-I - 2015 (37) STR 785 (Tri.-Mumbai), (appeal against the said decision was dismissed by the Hon'ble Supreme Court in the case of BCCI Vs. CST - 2015 (37) STR J176 (SC). 7.1 The respondent is engaged in the manufacture of iron and steel products in the State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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." The Hon'ble High Court of Delhi in Bajaj Travels Ltd. [2012 (25) S.T.R. 417] also concurred with the view taken by the Hon'ble Kerala High Court and held that Sections 76 and 78 operated in two different fields and penalty was imposable under both separately, even if offences were committed in course of the same transaction or arose out of the same act. However, since the law h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecord observes that there is no infirmity in the impugned order passed by the Tribunal and there is no reason to interfere in these matters. Thus, by dismissing the appeal, Hon'ble Apex Court endorses the view that for the period prior to 10.5.2008 (before there was amendment in Section 78 of the Finance Act 1994), penalty is imposable under both the sections i.e. 76 and 78 of the Finance Act, which operate in two different fields. 7.3 Hon'ble Delhi High Court in the case of Bajaj Travels Ltd. (supra) inter alia observed as under: "15. By their very nature, Sections 76 and 78 of the Act operate in two different fields. In the case of Assistant Commissioner of Central Excise v. Krishna Poduval - (2005) 199 CTR 58 = 2006 (1) S.T.R. 185 (Ker ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der and they have complied with the same. He therefore, submits that they are entitled to the benefit of waiver of remaining of 75% penalty as per First Proviso of the then Section 78 of the Finance Act, 1994. The ld. Counsel for the Revenue however submits that this facility of penalty of 25% is available only at the first level of adjudication and not at the appeal stage. After perusal of the appeal, it is noticed that on the issue of 25% penalty, there is no plea and no prayer by the Revenue. Therefore, at this stage this cannot be taken up. Therefore, the option of payment of 25% penalty in favour of the respondent cannot be denied when it has already been given by the impugned order. 10. In view of above discussions, the impugned orde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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