2013 (12) TMI 206 - AT - Service Tax

Penalty u/s 76 - Simultaneous penalty u/s 76 and 78 - Held that - penalty under Section 76 is not imposable and Section 78 has been invoked - Therefore, Commissioner (Appeals) has rightly waived penalty imposed under Section 76 of the Finance Act, 1994 being guided by Section 80 of the Finance Act, 1994. His action does not call for impeachment without any legal infirmity patent from the first appellate order - Decided against Revenue.

Summary

Issues: Absence of respondent leading to satisfaction with the order passed by ld. Commissioner (Appeals); Waiver of penalty under Section 76 of the Finance Act, 1994 by the first appellate authority; Interpretation of whether the drive way/entry and exit constructed by appellant amounts to road construction.

In this case, the absence of the respondent throughout the proceedings indicated satisfaction with the order passed by the ld. Commissioner (Appeals). This absence was noted on multiple occasions, leading to the conclusion that there was neither an appeal nor a cross objection by the respondent available on record. The Tribunal observed that the respondent's absence implied contentment with the decision of the ld. Commissioner (Appeals).

Regarding the waiver of penalty under Section 76 of the Finance Act, 1994, the first appellate authority had set aside the penalty despite the respondent inviting penalty under Section 78 of the Finance Act, 1994. The first appellate authority based this decision on a previous Tribunal ruling, appreciating that penalty under Section 76 was not applicable in this case. The Tribunal upheld the first appellate authority's decision, noting that the matter in question was whether the drive way/entry and exit constructed by the appellant constituted road construction. The Tribunal agreed that this was a complex issue, and the first appellate authority's decision to waive the penalty under Section 76 was justified, guided by Section 80 of the Finance Act, 1994.

Ultimately, the Tribunal confirmed the first appellate order and dismissed the Revenue's appeal. The Tribunal found no legal infirmity in the first appellate order and upheld the decision based on the interpretation of whether the construction in question amounted to road construction. The judgment highlighted the importance of legal guidance and interpretation in complex matters, ultimately leading to the dismissal of the appeal by the Revenue.