9911796707
TMI Blog2023 (5) TMI 524X X X X Extracts X X X X X X X X Extracts X X X X ..... ior to 10.05.2008, Hon ble High Court has certainly held that the Appellate Authority was within its right to hold that the penalty is mutually exclusive and in the spirit of the amendment. While the amount involved in the above case was Rs.51,026/-, the amount involved in the instant case is about half that amount. Therefore, in deference to the jurisdictional High Court s order, we find that penalty under Section 76 and 78 can be seen to be mutually exclusive even before the amendment. In the facts and circumstances of the case and looking into the fast changes that were coming in the Service Tax law during the relevant period, it can be concluded that the appellant being a small operator had no wherewithal to keep track of the law and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 77. The Appellate Authority vide Order dated 03.05.2011 has upheld the order but reduce the penalty to the extent of the penalty deposited by the appellants. 2. Shri Surjeet Bhadu, learned Counsel for the appellants submits that M/s SIFY has already discharged Service Tax liability on the gross amount charged to the customer; small scale exemption is applicable to them; in terms of Section 80, penalty cannot be imposed on them; moreover, the appellants have deposited the tax payable along with interest and 25% of the penalty and as such the proceedings should be discontinued and no further penalty should be imposed or payable by them. He submits that Tribunal in many cases held that even before 10.05.2008, separate penalty under S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Authority as well as the Appellate Authority have confirmed all the penalties particularly under Sections 76 and 78 for the reason that the amendment made by Finance Act, 2008 making Sections 76 & 78 mutually exclusive is not retrospective. 5. We find that the jurisdictional High Court in the case of Pannu Property Dealers, Ludhiana (Supra) held that: "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, 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o penalty shall be imposable on the assessee for any failure referred to in the said provisions if the assessee proves that there was reasonable cause for the said failure. We find that in the facts and circumstances of the case and looking into the fast changes that were coming in the Service Tax law during the relevant period, it can be concluded that the appellant being a small operator had no wherewithal to keep track of the law and thus, the applicability of the Service Tax to him, more so looking into the fact that the main cable operator M/s SIFY had discharged Service Tax on the entire amount collected from the customers, there are reasons to believe that there were sufficient reasons for the appellant in not discharging the appli ..... X X X X Extracts X X X X X X X X Extracts X X X X
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