2014 (11) TMI 989 - HC - Service Tax

Penalty u/s 76, 77 & 78 - held that - While considering the scope and ambit of Sections 76, 77, 78 of the Act, this Court has held in 2011 (1) TMI 52 - High Court of Punjab and Haryana - Commissioner of Central Excise Commissionerate v. M/s First Flight Courier Limited; 2011 (2) TMI 80 - HIGH COURT OF PUNJAB AND HARYANA - Commissioner of Central Excise, Commissionerate, Ludhiana v. M/s Akash Cable, 2010 (7) TMI 255 - PUNJAB AND HARYANA HIGH COURT - Commissioner of Central Excise v. M/s Pannu Property Dealers, Ludhaina that Sections 76, 77 and 78 of the Act, do not envisage imposition of simultaneous penalties. This apart, there appears to be error in the order passed by the Tribunal holding that the appellant did not deposit 25% of penalty within one month of its impositions. The Tribunal lost sight of the fact that adjudicating authority did not impose penalty and therefore, the assessee did not get an opportunity to deposit 25% of the penalty, within one month. - Consequently, but without expressing any opinion on the merits of the appeal and as to the rights of parties, the appeal is allowed, order dated 4-7-2013 2013 (7) TMI 508 - CESTAT NEW DELHI , is set aside and the matter is restored to the CESTAT - Decided in favour of assessee.

Summary

Issues:
Challenge to imposition of penalty under Sections 76, 77, and 78 of the Finance Act, 1994.

Analysis:
The appellant contested the penalty imposed under Sections 76, 77, and 78 of the Finance Act, 1994. The appellant's counsel argued that previous judgments by the Court held that simultaneous penalties cannot be imposed under the Act. Additionally, the appellant disputed the Tribunal's finding that they did not deposit 25% of the penalty within one month, highlighting that no penalty was actually imposed by the adjudicating authority. The appellant requested the matter to be remitted to the CESTAT for a fresh decision.

The Revenue's counsel did not object to the matter being reconsidered, acknowledging prima facie errors in the CESTAT's order. The appellant, despite offering taxable services since September 2005, only registered as a service provider in March 2007. The appellant deposited arrears of Service Tax and interest in May 2007. The adjudicating authority issued a notice in April 2008 regarding penalty imposition but later decided against it due to the timely tax deposit and a bona fide explanation provided by the appellant.

However, the revisional authority initiated penalty proceedings and imposed various penalties, including daily penalties for failure to pay Service Tax and penalties under Sections 77 and 78 of the Act. The appellant's appeal against this decision was dismissed by the CESTAT.

Upon hearing both parties, the Court referenced previous judgments and concluded that simultaneous penalties cannot be imposed under Sections 76, 77, and 78 of the Act. The Court also noted an error in the Tribunal's finding regarding the penalty deposit requirement, emphasizing that since no penalty was initially imposed, the appellant was not given the opportunity to comply with the deposit requirement within one month.

Consequently, the Court allowed the appeal, set aside the previous order, and remanded the matter to the CESTAT for fresh adjudication. The parties were directed to appear before the CESTAT on a specified date, with a mandate for the appeal to be decided within three months from that date.