Siri Jagan, J.

The issues involved in these two appeals are identical. Therefore the two appeals are disposed of by this common judgment.

2. The matter relates to payment of service tax, interest and penalty under the Finance Act, 1994, by the respondent in each of the two appeals. The Revenue is the appellant in both the appeals. Notices were issued to the respondents in these two appeals directing them to show cause why service tax amounting to Rs.27,425/= and Rs.33,450/=, respectively along with interest as applicable under Section 75, as also penalty under Sections 76 and 78 of the Finance Act, 1994, should not be recovered from them for failure to pay service tax and suppression of the value of taxable service with intent to evade payment of service tax. The show cause notices culminated in demand for service tax, interest and penalty under both Sections 76 and 78 of the Finance Act, 1984. The respondents in these appeals challenged the same in appeals before the Commissioner of Central Excise (Appeals). However, the appeals were dismissed since the same were filed beyond the period prescribed under sub section 3 of Section 85 of the Finance Act, 1984 and the Commissioner (Appeals) did not have power to condone delay beyond the maximum period prescribed under the said Section. Although the respondents have a further right of appeal before the Appellate Tribunal, they chose to file the writ petitions, the judgments in which are under challenge in these writ appeals, probably realizing that the Appellate Tribunal also cannot consider the appeal on merits, their first appeal having been dismissed as time barred with no provision to condone delay beyond the period prescribed under Section 85 of the Finance Act.

3. The writ petitions were filed Act, 1994 which sub section 3 of Section 85 of the Finance Act, 1994 which prescribed a maximum period of three months as the period during which the Commissioner (Appeals) could condone the delay in filing the appeals. They also challenge, inter alia, the imposition of penalty under Section 76 of the Act. On those grounds the respondents prayed for quashing of Exts.P8 and P9 orders in appeal passed by the Commissioner of Central Excise (Appeals). However, since the writ petitioners have not chosen to file any appeal against the judgment of the learned Single Judge in which this question was not considered, impliedly rejecting the prayer, we are not called upon to decide the same. Nor were any arguments advanced before us on that aspect probably because that question is no more re integra in view of the decisions interpreting identical provisions in other taxing statutes.

4. The leaned Single Judge by the impugned judgments in each of the writ petitions, confirmed the demand for service tax and interest under Section 75, as also penalty under Section 78 of the Finance Act, 1994. However, the learned Single Judge directed the first appellant herein modify the demand by withdrawing the penalty under Section 76. The Revenue is aggrieved by that part of the judgment of the learned Single Judge directing the 1st appellant to withdraw the penalty levied under Section 76.

5. According to the learned Assistant Solicitor General, who appeared and argued the appeals on behalf of the Revenue, the imposition of penalty under Sections 76 and 78 of the Act is for non-payment of service tax and suppression of value of taxable service, respectively which are two distinct and separate offences attracting separate penalties and therefore both are imposable against the respondents in the two appeals. On the other hand, the learned counsel for the respondents submitted that the offences alleged against the respondents arose from the same transaction constituting only one offence and therefore imposition of penalty under both the sections are unwarranted and unsustainable.

6. We have considered the arguments of both sides in detail. However, we are unable to agree with the arguments advanced by the co