IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Service Tax Appeal No.13 of 2010 Date of decision: 12.7.2010 Commissioner of Central Excise -----Appellant Vs. M/s Pannu Property Dealers, Ludhiana ----Respondent CORAM:- HON'BLE MR JUSTICE ADARSH KUMAR GOEL HON’BLE MR. JUSTICE AJAY KUMAR MITTAL Present:- Mr. H.P.S Ghuman, Sr. Standing Counsel for the appellant. Mr. Jagmohan Bansal, Advocate for the respondent. Adarsh Kumar Goel,J. 1. This appeal has been preferred by the revenue against deletion of penalty by the Customs, Excise and Services Tax Appellate Tribunal, New Delhi levied under section 76 of the Finance Act, 1994, which contains provisions for levy and collection of service tax (“the Act”) 2. The respondent-assessee is a property dealer and is service provider of taxable service under the Act. Show Cause Notice was given by the authority alleging failure on its part to file return and pay service tax on the taxable value for the period from 2001-02 to 2003-04. After consideration, order in original dated 16.10.2007 was passed adjudicating the amount of service tax and also levying penalty under section 76 of the Act for non payment of service tax, under section 77 for not filing the return and under section 78 for suppressing the taxable value. On appeal, while upholding penalty under section 78 of the Act for suppression, penalty under sections 76 and 77 of the Act was deleted. It was held that penalty under sections 76 and 77 could not be imposed in addition to penalty under STA No.13 of 2010 Section 78. The Tribunal partly allowed the appeal of the revenue against the said order and upheld the penalty of Rs.1,000/- under Section 77 of the Act. 3. We have heard learned counsel for the parties. 4. Learned counsel for the revenue submits that concept of penalty under sections 76 and 77 is different from penalty under Section 78. Reliance has been placed on judgment of the Kerala High Court in Assistant Commissioner of Central Excise v. Krishna Poduval, 2006(1) STR 185, holding that incident of imposition of penalty under different sections was distinct and even without suppression, there could be failure to pay tax or to file return. 5. Learned counsel for the assessee on the other hand submitted that there has been an amendment to section 78 by Finance Act, 2008 w.e.f 10.5.2008 adding a Proviso to the effect that if penalty is payable under section 78 of the Act, provision of Section 76 of the Act will not apply. The said amendment shows the intention of the legislature to avoid double penalty. 6. 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 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 2 STA No.13 of 2010 consonance with the amendment now incorporated though the said amendment may not have been applicable at the relevant time. Moreover, the amount involved is Rs.51026/- only. 7. In view of this position, we are unable to hold that any substantial question of law arises for entertaining appeal under section 35G of the Central Excise Act, 1944 read with section 83 of the Act. 8. The appeal is dismissed. (Adarsh Kumar Goel) Judge July 12, 2010 (Ajay Kumar Mittal) ‘gs’ Judge 3