2012 (10) TMI 260 - AT - Service Tax

Rectification of Mistake- Imposition of Penalty - Held that - Penalty u/s 80 cannot be waived or the benefit of reduced Penalty cannot be taken on the basis that Penalty u/s 76 ans 78 cannot be imposed simultaneously. - As decided in case of Asstt. Cce & Ors.Versus V. Krishna Poduval & Ors.2005 (10) TMI 279 - KERALA HIGH COURT , Penalty can be imposed simultaneously u/s 76 &78 of The Act - Application for Rectification of Mistake rejected- in favour of Revenue.

Summary

Issues:
Rectification of mistake in the order pronouncement and consideration of penalty under sections 76 and 78 of the Finance Act, 1994, along with the invocation of section 80 of the Act.

Rectification of Mistake in the Order Pronouncement:
The appellant sought rectification of a mistake in the order pronounced on a specific date. The appellant argued that penalties under sections 76 and 78 of the Finance Act, 1994, could not have been imposed simultaneously before the amendment in 2008. The appellant relied on a decision by the Hon'ble High Court of Punjab & Haryana and another order by a Member that supported this view. The appellant also requested the waiver of penalty under section 80 of the Act based on reasonable cause and omission. However, the Revenue contended that the Tribunal's reliance on a decision of the Hon'ble High Court of Kerala was appropriate, and there was no evidence that the appellant had cited the relevant decisions during the proceedings. The Revenue argued that the Tribunal's decision was valid based on the available information.

Consideration of Penalty under Sections 76 and 78:
The Tribunal examined the submissions from both sides and found no evidence that the appellant had cited the relevant decisions during the proceedings. The Tribunal noted that the decision of the Hon'ble Member was not available at the time of the hearing. Therefore, the Tribunal concluded that there was no error apparent on the face of the order regarding the imposition of penalties under sections 76 and 78 of the Act before the 2008 amendment. The Tribunal upheld its decision based on the arguments presented and the available information.

Invocation of Section 80 of the Act:
Regarding the invocation of section 80 of the Act for the waiver of penalties, the Tribunal agreed with the submissions made by the Revenue. The Tribunal highlighted the observations of the Hon'ble Member that indicated the appellant's bona fide impression due to the payment of duty, interest, and a portion of the penalty. The Tribunal noted that the Commissioner (Appeals) had considered this fact and granted the benefit of reduced penalty under the relevant provisions. The Tribunal concluded that there were no mistakes to rectify in this regard and rejected the application for rectification of mistake.

In summary, the Tribunal dismissed the application for rectification of mistake in the order pronouncement, upheld the imposition of penalties under sections 76 and 78 of the Act, and rejected the invocation of section 80 of the Act for the waiver of penalties based on the arguments and evidence presented during the proceedings.