JUDGMENT : Akil Abdul Hamid Kureshi, J. 1. This appeal is filed by the assessee who has been saddled with penalties under Sections 76 and 78 of the Finance Act, 1994. At the time of admission of tax appeal, the Court had framed the following question of law. "Whether the authority below committed substantial error of law in issuing notice alleging violation under Section 73Q of the Finance Act, 1994 beyond the period of one year, in the absence of any finding as regards fraud, collusion, willful misstatement, suppression of fact or contravention of any provision of the Chapter or Rules made thereunder, with intent to evade payment of service tax." 2. The perusal of the question would suggest that the challenge of the assessee is against imposition of penalties on the grounds of fraud, collusion, willful misstatement, suppression of fact etc. However, at the time of hearing of this appeal, learned advocate Shri Gupta for the assessee raised additional contention that it was not open for the department to impose simultaneous penalties under Sections 76 and 78 of the Finance Act, 1994. Being satisfied that such a question does arise out of the impugned order of the Tribunal, we would frame additional question of law as under: "Whether it was open for the adjudicating authority to impose simultaneous penalties upon the assessee both under Sections 76 and 78 of the Finance Act, 1994?" 3. These questions arise in the following background: 3.1 The appellant - assessee, a partnership firm, is engaged in the business of marketing and selling off-set printing machines and related products as a commission agent. For the period between 09.07.2004 and 31.03.2006 though the assessee was liable to pay service tax on such services rendered by it, failed to deposit the same with the department. It was only upon investigation by the department that the assessee in November 2006 paid the tax with interest. 3.2 On 09.05.2007 the adjudicating authority issued a show-cause-notice to the assessee calling upon it to state why the duties already deposited not be appropriated towards the service tax liability and interest and penalties under various provisions of the Finance Act, 1994, be not imposed. In particular, the assessee was called upon to state why the penalties under Sections 76 and 78 of the Finance Act, 1994 not be levied. In particular, the assessee was called upon to state why the penalties under Sections 76 and 78 of the Finance Act, 1994 not be levied. 3.3 The assessee filed a detailed reply primarily contending that the service tax on the service in question was exempt till 08.07.2004. The assessee was not aware about the revived service tax liability after 08.07.2004. It was also contended that because of the financial hardship the assessee did not deposit the service tax. 3.4 The adjudicating authority under its order dated 27.01.2009 did not accept the explanation of the assessee and in addition to the confirming the service tax demand imposed various penalties including under Sections 76 and 78 of the Finance Act, 1994. It was observed that the assessee was covered within the definition of auxiliary service. The assessee had agreed and admitted in his statement recorded by the preventive officer of service tax that the business activities being handled by them is covered under the category of business auxiliary services and therefore they were liable to pay service tax on the commission received despite which the registration of the firm was not done under the Service Tax Department. He concluded that if the evasion was not detected by the intelligence wing and the assessee was not summoned, service tax would not have been paid. The relevant part of the operative portion of the order of the adjudicating authority reads as under: "I impose penalty of Rs. 200 (Rupees two hundred only) per day or at the rate of 2% of the service tax amount per month upon them under Section 76 of the Finance Act, 1994, whichever is higher, for failure to make the payment of service tax payable by them within the stipulated time. As the actual amount of penalty could be depending on actual date of payment of service tax, however, as per section 76 of the Finance Act, 1994 penalty will be restricted to their service tax liability. "I impose a penalty of Rs. 3,48,387/- (Three lacs forty eight thousand three hundred eighty seven only) under Section 78 of the Finance Act, 1994 for suppressing and not disclosing the value of the said taxable services provided by them before the department within an intent to evade payment of service tax amounting to Rs. 3,48,387/-. "I impose a penalty of Rs. 3,48,387/- (Three lacs forty eight thousand three hundred eighty seven only) under Section 78 of the Finance Act, 1994 for suppressing and not disclosing the value of the said taxable services provided by them before the department within an intent to evade payment of service tax amounting to Rs. 3,48,387/-. However, the amount of penalty shall be reduced to 25% of the amount of service tax, if amount of penalty is paid within 30 days of the date of receipt of this order." 3.5 The assessee preferred appeal against the order in original. The appellate authority dismissed the appeal making following observations: "The appellants were in the business for long and cannot seek benefits under the guise of unawareness about law provisions. There was no confusion so far as taxability of, and exemptions to, activities of the commission agent. The appellants could have approached the department for clarification in case of any confusion. Instead, they preferred to decide the applicability of service tax as per their belief and did not pay service tax deliberately upto the period under dispute. This also indicates the intention of the appellants to avoid payment of service tax. It is an admitted fact that the appellants did not pay the service tax on their own and it was subsequent to summons proceedings initiated against the appellants. Moreover, the appellants had also not shown the correct receipt in their returns which lead to short payment of service tax. The department came to know about the contravention of provisions of law only during the investigation. The suppressions of the facts and mala fide of the appellants is thus proved and therefore the penalties imposed for such contravention and suppression under Sections 76, 77 and 78 of the Act are just and right." 3.6 The assessee carried the matter before the Customs Excise and Service Tax Appellate Tribunal, Ahmedabad. Such appeal came to be dismissed by the impugned judgment and order dated 30.04.2010. The Tribunal observed as under: "I find considerable force in the arguments advanced by the learned DR. Further, in Camlin Ltd. Vs. CCE Mumbai reported in 2009 (239) ELT 346 (Tri. Such appeal came to be dismissed by the impugned judgment and order dated 30.04.2010. The Tribunal observed as under: "I find considerable force in the arguments advanced by the learned DR. Further, in Camlin Ltd. Vs. CCE Mumbai reported in 2009 (239) ELT 346 (Tri. - Mumbai) it was held that bona fide belief is not blind belief and in this case, appellant squarely admitted that he was aware of his liability but took registration only later and because of financial difficulties he did not pay the tax. No evidence of financial difficulty was produced or pleaded. Further as submitted by the learned DR in the case of Krishna Poduval reported in 2006 (1) STR 185 (Ker.), Hon'ble High Court of Kerala held that penalties under Sections 76 and 78 of the Finance Act, 1994 are distinct and separate and penalties can be imposed under both the sections. In view of the facts and circumstances discussed above, and judicial precedence cited by the learned DR, I find no merits in the appeal and accordingly reject the same." 4. Learned counsel Mr. Gupta contended that there was no willful misstatement or suppression of fact on the part of the assessee so as to invite penalty under Section 78 of the Finance Act, 1994. The authorities below committed an error in imposing such penalty. Mr. Gupta, however, focused greater attention on the second question of law, and contended that, in any case the authority could not have imposed simultaneous penalties under Sections 76 and 78 of the Act. He pointed out that, by amendment in Section 78, which was brought into effect from 16.05.2008, a further proviso was added providing that if the penalty is payable under Section 78, the provision of Section 76 shall not apply. Counsel submitted that though this amendment was made, post the period in question in the present case, various High Courts have held that this amendment is merely clarificatory in nature and would therefore apply to the cases arising prior in time also. 5. On the other hand, learned counsel Mr. Ravani for the department opposed the appeal. He contended that there was clear suppression on part of assessee and contravention of the provisions of the Act with a view to evade the payment of service tax. The penalty under Section 78 was therefore rightly imposed. 5. On the other hand, learned counsel Mr. Ravani for the department opposed the appeal. He contended that there was clear suppression on part of assessee and contravention of the provisions of the Act with a view to evade the payment of service tax. The penalty under Section 78 was therefore rightly imposed. He further submitted that further proviso came to be added in Section 78 long after the period in question was over and the same therefore cannot be applied to delete the penalty under Section 76of the Finance Act, 1994. 6. Insofar as the first question is concerned, we have no hesitation in confirming the penalty imposed under Section 78 of the Finance Act, 1994. The adjudicating authority the appellate authority and the Customs Excise and Service Tax Appellate Tribunal, Ahmedabad concurrently held that the assessee who was not a small firm and was liable to pay service tax as was admitted by its partner in a written statement, had not deposited the same with the revenue authorities. The explanation offered by the assessee was not accepted. It was the case of the assessee that unaware of the tax liability, the service tax was not deposited with the department. Had this been the case, the assessee would have surely pleaded that such service tax was never collected from the service recipient. The defence that due to financial hardship such service tax was not paid would firstly destroy the assessee's case of ignorance of service tax liability. Secondly, the fact that the assessee even did not obtain registration with the Sales Tax Department would belie its stand that though willing to pay the tax could not do so due to financial hardship. The question No. 1 therefore shall have to be answered against the assessee and in favour of the department. 7. The additional question framed today pertains to simultaneous penalties under Sections 76 and 78 of the Finance Act, 1994. Section 78 of the Finance Act, 1994, provides for penalty where any service tax was not levied or not paid, or having short-levied or short-paid or erroneously refunded, by reason of fraud or collusion or willful mis-statement or suppression of facts or contravention of any of the provisions of Chapter 5 of the Finance Act or of the Rules made thereunder with the intent to evade payment of service tax. During the period in question i.e. the period from 09.07.2004 to 31.03.2006, Section 78 of the Finance Act, 1994, did not contain a further proviso, which, as noted above, which added with effect from 16.05.2008. The further proviso reads as under: "Further provided that if the penalties is payable under this section, the provisions of Section 76 shall not apply." 8. Section 76 of the Finance Act, 1994, pertains to penalty for failure to pay service tax. As it stood at the relevant time this provision provided that any person who is liable to pay service tax in accordance with the provisions of Section 68 or the Rules made under Chapter 5, but fails to pay such tax, shall pay, in addition to such tax and the interest on that tax in accordance with the provisions of Section 75, a penalty which shall not be less than one hundred rupees for every day during which such failure continues or at the rate of one per cent of such tax, per month, whichever is higher, starting with the first day after the due date till the date of actual payment of the outstanding amount of service tax. The proviso to Section 76 provided that the total amount of the penalty payable in terms of the said provision shall not exceed fifty per cent of the service tax payable. This Section 76 of the Finance Act, 1994, has been substantially amended with effect from 14.05.2015 to which we would make a reference at later stage. 9. It can thus be seen that at the relevant time Section 78 of the Finance Act, 1994, provided for penalty in cases of tax not being levied or paid, or short-levied or short-paid or erroneously refunded, by reason of fraud or collusion or willful mis-statement etc., whereas Section 76 covered the cases of non-payment of tax on any ground whatsoever. The penalty that authority could impose under Section78 is hundred per cent of the amount of the service tax evaded. On the other hand, the penalty under Section 76 which could be imposed is at the fixed amount per day for the entire duration of the failure to deposit the tax which, in any case, would not exceed fifty percent of the service tax payable. 10. On the other hand, the penalty under Section 76 which could be imposed is at the fixed amount per day for the entire duration of the failure to deposit the tax which, in any case, would not exceed fifty percent of the service tax payable. 10. The tenor, background and the purpose for which the penalty could be imposed under Section 78 of the Finance Act, 1994, is entirely different than in case of Section 76 of the Finance Act, 1994. However, the language of Section 76 did not specifically exclude the situation; otherwise covered under Section 78 namely non-payment of tax on account of willful mis-statement, fraud or collusion etc. One plausible argument therefore could be that Section 76 would also cover such situations and permit the department to levy a further penalty for default as envisaged under Section 76 of the Act over and above the penalty imposed under Section 78 of the Finance Act, 1994. In order to clarify this position, a further proviso was introduced in Section 78 making it clear that, if the penalty is payable under Section78, the provisions of Section 76 shall not apply. In other words, with the introduction of further proviso to Section 78 whenever penalty was imposed under Section 78, no further penalty could be levied under Section 76 of the Finance Act, 1994. 11. In view of the nature of this further proviso and the relevant position of the two statutory provisions both pertaining to penalty, we are convinced that the proviso was in the nature of clarificatory amendment and not creating a liability for the first time. Even without the aid to this further proviso to Section 78, one entire plausible view was that the situation envisaged under Section 76 of the Finance Act, 1994, would exclude those cases covered under Section 78 of the Finance Act, 1994. In other words, Section 76 of the Finance Act, 1994, would cover only the cases of non-payment of service tax which are not related to fraud, collusion, willful mis-statement, suppression of facts or contravention of any of the provisions of the said Chapter or the rules made thereunder with the intent to evade payment of service tax since legislature had already provided for penalty in Section 78 in such situations. Thus further proviso to Section 78 made it explicit which was till then implicit. 12. Thus further proviso to Section 78 made it explicit which was till then implicit. 12. Section 76 of the Finance Act, 1994, as is now amended with effect from 14.05.2015 gives further credence to this argument. Section 76(1) as it stands after the said amendment provides that where service tax was not levied or not paid or having been short-levied or short-paid, or erroneously refunded for any reason, other than the reason of fraud or collusion or willful mis-statement or suppression of facts or contravention of any of the provisions of Chapter 5 or the rules made thereunder with an intent to evade the payment of service tax, the person liable shall in addition to service tax and interest also be liable to pay penalty not exceeding ten per cent of the amount of such service tax. Thus, by way of this amendment, the statute has ensured that Sections 76 and 78 of the Finance Act, 1994, apply in mutually exclusive areas. In other words, the cases of nonpayment of tax by reason of fraud or collusion or willful mis-statement or suppression of facts etc., would be covered under Section 78 of the Finance Act, 1994, and all cases other than those envisaged under Section 78would be covered under Section 76 of the Finance Act, 1994. 13. The view taken by us is supported by the judgment of Punjab and Haryana High Court in the case of Commissioner of Central Excise Vs. First Flight Courier Limited [2011 (22) S.T.R. 622 (P & H)] in which in para 4 and 5 it was held and observed as under: "4. Only point which has been urged by learned counsel for the appellant is that after 10-05-2008, there is an amendment providing that penalty under Section 76 could not be levied if penalty under Section 78 has been levied but for the period prior thereto, penalty could be levied under both Sections. The Commissioner (Appeals) as well as the Tribunal erred in deleting the penalty under Section 76 by assuming that simultaneously penalty under both the provisions could not be levied for the period in dispute. 5. We are unable to accept the submission. Section 76 provides for penalty for failure to pay the amount while Section 78 provides for penalty for suppressing the taxable value. Section 78 is, thus, more comprehensive and provides for higher amount. 5. We are unable to accept the submission. Section 76 provides for penalty for failure to pay the amount while Section 78 provides for penalty for suppressing the taxable value. Section 78 is, thus, more comprehensive and provides for higher amount. Even if technically, the scope of Sections 76 and 78 is different, penalty under Section 76 may not be justified if penalty had already been imposed under Section 78. The matter was considered by this Court in STA No. 13 of 2010 (Commissioner of Central Excise Vs. M/s. Pannu Property Dealers, Ludhiana decided on 12-7-2010, wherein it was observed:-"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 consonance with the amendment now incorporated though the said amendment may not have been applicable at the relevant time." 14. The Karnataka High Court has also taken a similar view in the case of Commissioner of Service Tax, Bangalore Vs. Motor World [ 2012 (27) S.T.R. 225 (Kar.)] in which in paras 17, 18 and 19 it was observed as under: "17. This decision of the Tribunal has been affirmed by this Court in the case of CCE v. Sunitha Shetty reported in 2006 (3) S.T.R. 404 (Kar.) : 2004 (174) E.L.T. 313 (Kar.), which has been followed by this court in the case of Commissioner of Central Excise v. Royal Agencies in CEA No. 4 of 2004 disposed of on 26-02-2008. Similar views have been taken by various other High Courts. Therefore, this penalty provision being penal in nature has to be strictly considered. If two views are possible, it is that view which is beneficial to the assessee which is to be preferred. Similar views have been taken by various other High Courts. Therefore, this penalty provision being penal in nature has to be strictly considered. If two views are possible, it is that view which is beneficial to the assessee which is to be preferred. That is what has been done by the Tribunal as well as by this Court. Therefore, it is not possible to accept the contention of the revenue that less than one hundred rupees has to be considered as less than one hundred rupees for everyday. 18. Probably, noticing this loophole, the Legislature taking note of the judicial pronouncement, from 18-4-2006 amended the law so as to include 'every day' after the words one hundred rupees. Therefore, till such amendment, the interpretation placed by the Judicial authorities has been accepted by the Government. That is the cause for amendment. Therefore, the minimum penalty leviable under Section 76 is one hundred rupees and the maximum penalty leviable is two hundred rupees per day, during the relevant period. However, the same is subject to the condition stipulated in the said section that he has failed to pay service tax. Therefore, discretion is left to the authority to prescribe the measure of penalty between these two stipulations. 19. If it is a failure to comply with the requirement of Section 78, a separate penalty is stipulated in the said provision. Section 78 applies to a case where a person has registered himself under the Act and failed to file the prescribed return and in such return filed, he has suppressed or concealed the value of taxable service or has furnished inaccurate value of such taxable service. Therefore, it is clear that Section 78 operates in an altogether differed field. But, even if as a matter of fact, it is established that the assessee has suppressed or concealed the value of taxable service and has furnished inaccurate value of such taxable service, the imposition of penalty is not automatic. The intention is clear from the words used in the said provision, to the effect that, he may act according to the provision while imposing penalty." 15. We are not unmindful of the decision of the Delhi High Court in the case of Bajaj Travels Limited Vs. The intention is clear from the words used in the said provision, to the effect that, he may act according to the provision while imposing penalty." 15. We are not unmindful of the decision of the Delhi High Court in the case of Bajaj Travels Limited Vs. Commissioner of Service Tax [2012 (25) S.T.R. 417 (Del.)] in which in para 16 the Delhi High Court observed as under: "No doubt, Section 78 of the Act has been amended by the Finance Act, 2008 and the amendment provides that in case where penalty for suppressing the value of taxable service under Section 78 is imposed, the penalty for failure to pay service tax under Section 76 shall not apply. With this amendment the legal position now is that simultaneous penalties under both Section 76 and 78of the Act would not be levied. However, since this amendment has come into force w.e.f. 16th May, 2008, it cannot have retrospective operation in the absence of any specific stipulation to this effect. Going by the nature of the amendment, it also cannot be said that this amendment is only clarificatory in nature. We may mention that Punjab and Haryana High Court in its decision dated 12th July, 2010 in STA 13/2010, entitled Commissioner of Central Excise v. M/s. Pannu Property Dealers, Ludhiana [2011 (24) S.T.R. 173 (P & H)] has taken the view that even if the scope of two sections of the Act may be different, 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. However, that was a case where the appellate authority had exercised its discretion not to levy the penalty under Section 76 of the Act, when the larger penalty had already been imposed under Section 78 of the Act. In this scenario, the appeal of the Revenue against the said view taken by the appellate authority was dismissed holding that "appellate authority was within its jurisdiction not to levy the 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 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. 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 amount involved is Rs. 51,026/- only." The Court, thus, chose not to interfere with the aforesaid discretion of the Tribunal." 16. Under the circumstances, we answer the additional question in favour of the appellant-assessee and delete the penalty under Section 76 of the Finance Act, 1994, while upholding the penalty imposed under Section 78 and other penalties. The tax appeal is accordingly disposed of with no order as to costs.