2013 (3) TMI 55 - AT - Service Tax

Penalty u/s 76 is also leviable alongwith section 78 - Held that - Do not approve simultaneous penalty to be ordered under sections 76 and 78 of the Finance Act, 1994 thus agree with the Commissioner (Appeals) to the extent of waiving the penalty under section 76 by him and his order is approved. Cum-tax benefit claimed by assessee - Held that - This point does not need further consideration at this stage for no evidence led to show that the gross value was inclusive of service tax. So far as the taxability is concerned that was not before Commissioner (Appeals), thus such issue not been raised nor decided no pleading at this stage is entertainable in second appeal. Cross-objection is dismissed accordingly.

Summary

Issues: Appeal against the appellate order regarding penalty under section 76 and section 78 of the Finance Act, 1994, cross-objection on valuation and taxability, and a stay application by the Revenue.

Analysis:
1. The Revenue appealed against the appellate order, contending that penalty under section 76 should be levied along with section 78 of the Finance Act, 1994. The Tribunal clarified that all three proceedings, including the stay application, would be addressed simultaneously. The Tribunal disposed of the stay application as the appeal was taken up for disposal.

2. Regarding the Revenue's appeal, the Tribunal disagreed with the imposition of simultaneous penalties under sections 76 and 78. Consequently, the Tribunal upheld the decision of the ld. Commissioner (Appeals) to waive the penalty under section 76. The Tribunal approved the Commissioner's order in this regard.

3. Concerning the cross-objection by the respondent assessee on valuation and taxability, the Tribunal found no merit in the valuation issue based on the discussion in the ld. Commissioner (Appeals)'s order. The respondent sought cum-tax benefit, but the Tribunal found no evidence to support the claim that the gross value included service tax. Additionally, the issue of taxability was not raised before the Commissioner (Appeals) and, therefore, was not entertainable at this stage. Consequently, the Tribunal dismissed the cross-objection.

4. In conclusion, the Tribunal brought all three proceedings to a close, addressing the issues raised by both the Revenue and the respondent assessee.