2014 (11) TMI 421 - HC - Service Tax

Simultaneous penalty u/s 76 & 78 - Re calculation of demand - Held that - While passing Ext. P3, found it necessary to have recalculation to appropriate extent, based on the contentions taken from the part of the assessee, which admittedly is not done so far. To what extent the said quantification is necessary or will it absolve the petitioner from the liability, is the next point to be considered. The total liability to be satisfied by the petitioner as per the relevant provision is the actual extent of tax, plus penalty under Section 76 which is an equal amount, besides penalty under Section 78, which is of another equal extent. By virtue of the nature of dispute and even going by the admission from the part of the petitioner, the liability to be satisfied by the petitioner is ₹ 14,88,486/-. The total liability to be cleared by the petitioner is three times, less the amount if any, satisfied. - Petition disposed of.

Issues:
1. Challenge to Ext. P6 demand for payment of Rs. 54,22,413/- based on Ext. P1 order.
2. Discrepancy in amount due between petitioner and department.
3. Imposition of dual penalty under Sections 76 and 78 of the Finance Act.
4. Appellate authority's order for recalculation and liability determination.
5. Requirement for petitioner to satisfy the outstanding amount.

Analysis:
1. The petitioner contested the demand of Rs. 54,22,413/- based on Ext. P1 order and subsequent modifications. The petitioner argued that the quantification was pending despite Ext. P3 appellate order for remand. The CESTAT upheld penalties under Sections 76 and 78, dismissing the petitioner's appeal in Ext. P5 judgment. The petitioner sought relief due to incomplete recalculation post Ext. P3 order.

2. The discrepancy in the amount due arose from non-recovery of dues from clients, affecting the tax valuation. The appellate authority noted the need for recalculation based on actual recovery. The penalty under Section 76 was set aside, while that under Section 78 was upheld. The CESTAT's decision in Ext. P4 confirmed the imposition of penalties under both sections. The petitioner's liability was disputed, with the department claiming only Rs. 3 lakhs were satisfied, contrary to the petitioner's claim of Rs. 7 lakhs.

3. The issue of dual penalty under Sections 76 and 78 was raised, with the appellate authority intercepting the penalty under Section 76 but sustaining that under Section 78. The CESTAT's decision in Ext. P4 cited precedent for imposing penalties under both sections. The Division Bench confirmed this decision in Ext. P5 judgment, leading to the demand in Ext. P6.

4. The appellate authority's Ext. P3 order necessitated recalculation based on the petitioner's contentions, which remains pending. The liability to be satisfied included the actual tax amount, penalty under Section 76, and penalty under Section 78. The petitioner's liability was determined to be Rs. 14,88,486/-, with the total amount to be cleared being over Rs. 31 lakhs, considering the satisfaction of Rs. 7 lakhs.

5. The court directed the petitioner to satisfy Rs. 31 lakhs within two weeks, pending completion of the recalculation exercise by the assessing authority as per Ext. P3 order. The petitioner was given two months for this process, with the balance liability, if any, to be cleared by the petitioner. The judgment was to be presented to the concerned respondent for further action.

This comprehensive analysis addresses the issues raised in the legal judgment, detailing the arguments, decisions, and directions provided by the court.

← Previous Next →