2015 (9) TMI 51 - AT - Service Tax

Simultaneous penalty u/s 76 & 78 - service tax was deposited before issuance of the show cause notice - Held that - The appellant had been providing the impugned service since October, 2005 but had neither taken registration nor filed any returns. The service was provided under an agreement with M/s Hindustan Lever Ltd. The said agreement clearly brings out the nature of service and there was no scope for any ambiguity or doubt about the taxability thereof. In these circumstances, the allegation of suppression on the part of the appellant is clearly sustainable warranting imposition of mandatory penalty under Section 78 - order is being issued pursuant to and in compliance of the order dated 3.11. 2014 of Punjab and Haryana High Court which duly takes note of the fact that as per the judgements of the same High Court in the case of First Flight Courier Ltd 2011 (1) TMI 52 - High Court of Punjab and Haryana and M/s. Akash Cable 2011 (2) TMI 80 - HIGH COURT OF PUNJAB AND HARYANA , even if the penalties under Sections 76 and 78 could be imposed simultaneously during the relevant period, penalty under Section76 would not be justified when penalty under Section 78 is imposed - Penalty u/s 76 is set aside - Penalty u/s 78 is upheld - Decided partly in favour of assessee.

Summary

Issues:
Imposition of penalty under Sections 76 and 78 of the Finance Act 1994 simultaneously without providing the option for depositing 25% of the mandatory penalty within 30 days.

Analysis:
The judgment was delivered by the Appellate Tribunal CESTAT NEW DELHI regarding the imposition of penalties under Sections 76 and 78 of the Finance Act 1994. The case involved the appellant who had commenced operations in September 2005 but failed to register as a service provider until March 2007, leading to the non-payment of service tax initially. The Adjudicating authority did not impose a penalty due to the timely deposit of service tax before the show cause notice. However, the revisional authority later imposed various penalties, including penalties under Sections 76 and 78.

Upon appeal, the CESTAT dismissed the appellant's appeal, leading to the current judgment. The Appellate Tribunal noted that the Punjab & Haryana High Court had previously held that simultaneous penalties under Sections 76, 77, and 78 of the Act should not be imposed. It was also observed that there was an error in the previous order as the appellant did not have the opportunity to deposit 25% of the penalty within one month since the penalty was not imposed by the adjudicating authority initially.

The appellant argued against the imposition of penalties, claiming no wilful misstatement or suppression of facts. On the other hand, the Departmental Representative contended that the appellant's actions amounted to suppression of facts to evade duty, justifying the penalties imposed. Reference was made to a Supreme Court decision supporting the simultaneous imposition of penalties under Sections 76 and 78 during the relevant period.

After considering the arguments and legal precedents, the Appellate Tribunal partially allowed the appeal by setting aside the penalty under Section 76 but upholding the penalty under Section 78. The appellant was granted the option to pay 25% of the penalty under Section 78 within 30 days. The judgment emphasized the importance of providing the option for reduced penalty payment and clarified the applicability of simultaneous penalties under Sections 76 and 78 based on the legal interpretations and precedents cited during the proceedings.