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TMI Blog2019 (2) TMI 1566X X X X Extracts X X X X X X X X Extracts X X X X ..... ections 76 and 78 are mutually exclusive. When the adjudicating authority has considered and imposed penalty under section 76, the same cannot be set aside by the Tribunal in an appeal filed by department requesting to impose penalty under Section 78. There is no ground stated in this appeal contending that penalty imposed under Section 76 is erroneous. The Hon’ble High Court of Gujarat in Commissioner of CGST & Central Excise Vs. Sai Consulting Engineering Ltd. [2018 (5) TMI 1425 - GUJARAT HIGH COURT] has held that simultaneous penalties under Section 76 as well as 78 of the Finance Act cannot be imposed. The simultaneous penalty under section 76 and 78 cannot be imposed under law - when there is a penalty under section 76, the simul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,12,484/- raised in the show cause notice and appropriated the said amount already paid by the appellant along with interest and imposed penalty under section 76 of the Finance Act, 1994 along with penalty of ₹ 5,000/- under section 77 of the Act. The department has filed the present appeal against such order aggrieved for the failure to impose penalty under section 78, even though the same was proposed in the show cause notice. 2. The ld. AR Shri B. Balamurugan reiterated the grounds of appeal. He adverted to para 2.1 of the show cause notice and argued that the respondents in their ST-3 returns for the half-year ending 31.3.2009 declared the taxable value lesser than that was actually received by them. It was further noticed that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be imposed. In the present case, show cause notice was issued even though the appellant had paid up the entire service tax along with interest immediately on being point out by audit. The adjudicating authority has imposed penalty under section 76. The ld. AR has argued that the adjudicating authority has not made any discussions for dropping the penalty under section 78. We have given our anxious consideration to the argument put forward by the ld. AR. After the amendment with effect from 10.5.2008, last proviso to section 78 states that if penalty is payable under such section, the provisions of section 76 shall not apply. Therefore, the penalties under sections 76 and 78 are mutually exclusive. When the adjudicating authority has conside ..... X X X X Extracts X X X X X X X X Extracts X X X X
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