2011 (8) TMI 1072 - HC - Central Excise

Imposition of penalty u/s 76 & 78 of the FA, 1994 - Service Tax has been paid immediately before the fact of liability was brought to the notice of the assessee - Section 73 of FA - Held that - Sub-section (3) of Section 73 of the FA, 1994 categorically states, after the payment of service tax and interest is made and the said information is furnished to the authorities, then the authorities shall not serve any notice under sub-section (1) in respect of the amount so paid. Therefore, authorities have no authority to initiate proceedings for recovery of penalty - appeal dismissed - decided against Revenue.

Summary

Issues Involved:
1. Appeal filed by Revenue under Section 35G of the Central Excise Act, 1944 against the order of the Customs, Excise & Service Tax Appellate Tribunal (CESTAT).
2. Whether the view taken by CESTAT under Sections 76 & 78 of the Finance Act, 1994 is proper.

Analysis:

Issue 1:
The appeal was filed by the Revenue under Section 35G of the Central Excise Act, 1944, challenging the order of the CESTAT which allowed the appeal filed by the assessee. The CESTAT held that the Service Tax was paid immediately before the liability was brought to the notice of the assessee, and therefore, penalty could not have been imposed as per Section 73(3) of the Finance Act and Board's Circular. The High Court admitted the appeal and considered the substantial question of law regarding the correctness of CESTAT's view under Sections 76 & 78 of the Finance Act, 1994.

Issue 2:
The High Court noted that the same substantial question of law was involved in other connected appeals against the common order passed by CESTAT. A Division Bench at the Principal Bench dismissed all connected appeals by answering the questions of law against the Revenue and in favor of the assessee. Consequently, the High Court, following the reasons assigned in a previous judgment, answered the substantial question of law against the Revenue in the present appeal as well. The High Court held that the appeal was devoid of merits and consequently dismissed the appeal filed by the Revenue.

In conclusion, the High Court dismissed the Revenue's appeal under Section 35G of the Central Excise Act, 1944, holding that the view taken by CESTAT under Sections 76 & 78 of the Finance Act, 1994 was not proper. The judgment reiterated the decision of a Division Bench in other connected appeals, where the questions of law were answered against the Revenue.