2010 (3) TMI 809 - AT - Service Tax

Penalty under Section 76 and Section 78 - simultaneous imposition of penalty under Sections 76 and 78 - Held that - case stand settled in favour of the Revenue by the judgment of Hon ble Kerala High Court in the case of Krishna Poduval (2005 - TMI - 75949 - Kerala High Court) penalties 76 and 78 can be imposed simultaneously. order setting aside the penalty on the respondent under Section 76 of the Finance Act 1994 is not correct Revenue s appeal is accordingly allowed.

Summary

Issues:
Whether penalty under Section 76 and Section 78 can be imposed simultaneously.

Analysis:
The appeal was filed by the Revenue against the order-in-appeal passed by the Commissioner(Appeals), Chandigarh. The Respondent did not appear for the hearing despite receiving notice, leading to the appeal being heard ex parte. The learned DR argued that the only issue in this case was whether penalties under Section 76 and Section 78 can be imposed simultaneously. The Commissioner(Appeals) had set aside the penalty under Section 76, stating that if penalty is imposed under Section 78, penalty under Section 76 cannot be imposed. The learned DR contended that this view was incorrect, citing judgments from the Hon'ble High Court of Kerala and the Tribunal.

Upon careful consideration of the submissions and records, the judge noted that the issue had been settled in favor of the Revenue by the judgments of the Hon'ble Kerala High Court and the Tribunal. Referring to the judgments in the cases of Krishna Poduval and Bajaj Travels Ltd., the judge concluded that the impugned order setting aside the penalty under Section 76 was incorrect. Consequently, the judge set aside the impugned order and restored the Asstt. Commissioner's order, thereby allowing the Revenue's appeal.