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TMI Blog2017 (9) TMI 419X X X X Extracts X X X X X X X X Extracts X X X X ..... st 10.5.2008 only is hereby dropped but for the period prior to 10.5.2008 penalties imposed under both Sections 76 and 78 are sustained. As the facts do not make it clear that how much / what is exact quantification of the tax evaded separately for these two periods i.e. prior to 10.5.2008 and post 10.05.08, the matter is remanded to the original adjudicating authority for quantification of the tax demand for these two periods - appeal allowed by way of remand. - Service Tax Appeal No.56304 of 2013 - ST/A/55617/2017-CU[DB] - Dated:- 28-7-2017 - Mr. D M Misra, Member (Judicial) And Mr. Ashok K Arya, Member (Technical) Shri Vijayan Khongal, Company Secretary for the Appellants Shri Ranjan Khanna, DR for the Respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant. v) the appellant, therefore, is in appeal before the Tribunal against said impugned order. 3. With above background of facts, we have heard both the sides represented by Shri Vijayan Khongal, learned Company Secretary for the appellant and Shri Ranjan Khanna, learned AR for the Revenue. 4. We have carefully considered the facts of the case and the submissions made by both the sides. 5. The appellant is mainly contesting penalties imposed. The penalties have been imposed under both the Sections i.e. 76 and 78 of the Finance Act, 1994. Learned Company Secretary for the appellant pleads that the penalties under both Sections 76 and 78 cannot be imposed simultaneously for the period prior to 10.5.2008 when the amendment wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue 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. 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 aro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the same subject has observed as under:- 15. By their very nature, Section 76 and 78 of the Act operate in two different fields. In the case of Assistant Commissioner of Central Excise Vs. Krishna Poduval (2005) 199 CTR 58 the Kerala High Court has categorically held that instances of imposition of penalty under Section 76 and 78 of the Act are distinct and separate under two provisions and even if the offences are committed in the course of same transactions or arise out of the same Act, penalty would be imposable both under Section 76 and 78 of the Act. We are in agreement with the aforesaid rule. 16. No doubt, Section 78 of the Act has been amended by the Finance Act, 2008 and the amendment provides that in case where pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Moreover, the CEAC-06/2009 CEAC-07/2009 Page 21 of 26 amount involved is ₹ 51,026/- only. The Court, thus, chose not to interfere with the aforesaid discretion of the Tribunal. 17. However, in the instant case, the appellate authority, including the Tribunal, has chosen to impose the penalty under both the Sections. Since the penalty under both the Sections is imposable as rightly held by Kerala High Court in Krishna Poduval (supra), the appellant cannot contend that once penalt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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