2013 (11) TMI 508 - AT - Service Tax

Penalty u/s 76 or 78 - Whether penalty u/s. 76 of the Finance Act 1994 can be imposed when penalty u/s. 78 of the Finance Act has already been imposed - Amendment to section 78 - Held that - With this amendment the legal position now is that simultaneous penalties under both Section 76 and 78 of the Act would not be levied. However, since this amendment has come into force w.e.f. 10th May, 2008, it cannot have retrospective operation in the absence of any specific stipulation to this effect. Going by the nature of the amendment, it also cannot be said that this amendment is only clarificatory in nature - Following decision of Anand Decoreters & Hirers Vs. Commissioner ST, Ahmedaba 2013 (8) TMI 374 - CESTAT AHMEDABAD - Decided against assessee.

Summary

Issues: Whether penalty under Section 76 of the Finance Act, 1994 can be imposed when penalty under Section 78 of the same Act has already been imposed.

The appellant filed an appeal against an order-in-Revision passed by the Commissioner Central Excise & Customs Vadodara, which held that penalty under Section 76 of the Finance Act, 1994 was imposable in addition to the penalty imposed under Section 78 for the period 2003-04 & 2005-06. The appellant argued that once penalty under Section 78 is imposed, no penalty under Section 76 is attracted, citing the proviso added to Section 78 w.e.f. 10/05/08 and various case laws. The appellant waived the right to a hearing and requested a decision based on the grounds of appeal and written submissions.

The respondent, on the other hand, contended that penalties under both Section 76 & 78 of the Finance Act, 1994 were imposable for the period prior to 10/05/2008, as per the amendment in Section 78 having prospective effect. The respondent relied on case laws to support this argument.

The issue involved was whether penalty under Section 76 of the Finance Act, 1994 could be imposed when penalty under Section 78 had already been imposed. The appellant argued that the proviso to Section 78 introduced w.e.f. 10.05.08 specified that no penalty under Section 76 was required if penalty under Section 78 was imposed. The respondent cited judgments supporting the imposition of penalties under both sections separately, even for offenses committed in the same transaction.

The CESTAT analyzed the arguments and referred to relevant judgments, including a case where it was held that penalties under Sections 76 & 78 of the Finance Act, 1994 could be imposed separately. The CESTAT upheld the imposition of penalty under Section 76 based on the interpretation of law and judicial discipline, rejecting the appellant's appeal.

In conclusion, the CESTAT held that prior to 10/05/2008, simultaneous penalties under Sections 76 & 78 of the Finance Act, 1994 were imposable, and therefore, the appeal filed by the appellant was rejected.