Archana Wadhwa - (1.)AFTER dispensing with the condition of pre -deposit of penalty, we proceed to decide the appeal itself inasmuch as we find that the issue stands decided by the Hon'ble Punjab & Haryana High Court. The original Adjudicating Authority while confirming the demand of service tax and imposing penalty under sections 77 and 78 of the Finance Act, 1994, did not impose any penalty under section 76. Revenue challenged the said order before Commissioner (Appeals), who accepted their appeal and imposed penalty under section 76. Hence, the present appeal by the assessee.
(2.)WE find that the Hon'ble Punjab & Haryana High Court in the case of CCE v. First Flight Courier Ltd. [STA No. 48 of 2011, dated 28 -1 -2011] has held that imposition of penalty under sections 76 and 78 of the Finance Act, 1994, prior to 10/5/08 amounts to double jeopardy and if penalty has been imposed under section 78 separate imposition of penalty under section 76 is not justified.
Learned DR refers to Hon'ble Kerala High Court decision in the case of Asstt. CCE v. Krishna Poduval : [2006] 3 STT 96 laying down that incidence of imposition of penalties under the two sections are distinguish and separate and if offences are committed in courses of same transaction or arise out of same act, separate penalties are imposable for ingredients of both the offences.

(3.)LEARNED advocate submits that the Hon'ble Punjab & Haryana High Court decision is later in point of time and is also the Jurisdictional High Court of Delhi Benches of the Tribunal. As such, he submits that the same should be followed. He also draws our attention to another decision of the Tribunal in the case of CCE v. Mittal Technopack (P.) Ltd. : [2012] 37 STT 678/27 taxmann.com 221 (Kol. - CESTAT) wherein Tribunal by taking note of both the decisions of the Hon'ble High Court has followed Hon'ble Punjab & Haryana High Court. In view of the fact that Delhi Benches fall under the jurisdiction of Punjab & Haryana High Court and as such, are bound by the declaration of the law by the said High Court and also in view of fact that, that the Punjab & Haryana High Court decision is later in point of time, and that both the decision stand discussed by the decision of Mittal Technopack (P.) Ltd. (supra), we are by the respectfully following said decision of the Punjab & Haryana High Court, set aside the impugned order of Commissioner (Appeals) as regards imposition of penalty under section 76 of the Finance Act and allow the appeal with consequential relief to the appellant. Stay petition as also appeal get disposed of in above manner.