2013 (5) TMI 701 - AT - Service Tax

Penalty u/s 76 simultaneous penalty held that - Hon ble High Court of Punjab and Haryana in the case of Commissioner of Central Excise Vs. First Flight Courier Ltd. (2011 (1) TMI 52 - High Court of Punjab and Haryana) taking into consideration the amending provision, has specifically answered whether penalty under sec. 76 as well as sec. 78 can be imposed simultaneously for the period prior to the amendment of said provisions. - the appellate authority was within its jurisdiction not to levy penalty under section 76 of the Act having regard to the fact that penalty equal to service tax had already been imposed under section 78 of the Act.

Summary

Issues:
- Imposition of penalty under Sections 76 and 78 of the Finance Act, 1994 simultaneously.
- Interpretation of the law post-amendment dated 10/5/2008 regarding penalty imposition under Sections 76 and 78.

Analysis:
- The appeal was filed against an order for non-payment of Service Tax under the 'Business Auxiliary Service' category. The appellant paid the entire tax amount before the show cause notice was issued, but penalty was proposed under Sections 76 and 78 of the Finance Act, 1994.
- The Adjudicating Authority imposed penalty only under Section 78. The Revenue appealed for the imposition of penalty under Section 76 as well. The Commissioner (Appeals) upheld the original order, leading to the present appeal.
- The Revenue argued that penalty under Section 76 should have been imposed based on the impugned notice. Reference was made to a judgment of the Hon'ble Kerala High Court.
- The Respondent's consultant contended that penalty under Section 76 was not necessary once penalty under Section 78 was imposed. Referring to a judgment of the Hon'ble Punjab and Haryana High Court, it was stated that the concept of imposing penalties under both sections had been eliminated post the amendment of May 10, 2008.
- The Tribunal considered whether penalty under Section 76 should be imposed in addition to the penalty under Section 78. The Commissioner (Appeals) decided against imposing both penalties simultaneously, citing previous judgments and the amendment to the law.
- The Tribunal referred to a recent judgment of the Punjab and Haryana High Court, which clarified that penalty under Section 76 may not be justified if penalty under Section 78 had already been imposed. The Tribunal dismissed the appeal by the Revenue, stating that there was no merit in imposing both penalties concurrently post the amendment.

This detailed analysis of the judgment highlights the key issues of penalty imposition under Sections 76 and 78 of the Finance Act, 1994 and the interpretation of the law post-amendment dated 10/5/2008. The Tribunal's decision was based on previous judgments and the specific provisions of the law, ultimately dismissing the appeal by the Revenue.