2016 (2) TMI 72 - AT - Service Tax

Simultaneous penalty u/s 76 and 78 - Option of pay reduced penalty @25% - While deciding the issue Adjudicating authority did not impose Sec 76 penalty and also did not give the option of 25% reduced penalty under Sec 78 of the Finance Act 1994 to the appellant - Commissioner of Central Excise, Bolpur also reviewed OIO dt 28/8/2008 & imposed Sec 76 penalty in addition to penalty u/s 78 - Held that - in the present proceedings simultaneous imposition of penalties under Sec 76 & 78 was permissible as show cause notice in the present case was issued before 16/5/2008 when Sec 78 of the Finance Act 1994 was amended. So for as option of 25% reduced penalty under Sec 78 not given to the appellant is concerned, it is observed from the OIO dt 28/8/2008 that no such option was extended to the appellant. Accordingly it is ordered that appellant shall have an option to pay 25% reduced penalty if all the dues & 25% reduced penalty is paid within one month from the date of receipt of this order. - Decided partly in favor of assessee.

Summary

Issues Involved:
1. Validity of order-in-Revision passed by the Commissioner.
2. Applicability of Section 84(4) of the Finance Act, 1994.
3. Simultaneous imposition of penalties under Sections 76 and 78 of the Finance Act, 1994.
4. Option of 25% reduced penalty under Section 78 of the Finance Act, 1994.

Issue-wise Detailed Analysis:

1. Validity of order-in-Revision passed by the Commissioner:
The appellant argued that the order-in-Revision dated 04/09/2009 by the Commissioner was incorrect as an appeal on the same issue was pending before the Commissioner (Appeals). The respondent countered that the order-in-Revision was valid since the imposition of penalty under Section 76 was not under consideration by the first appellate authority. The Tribunal observed that the issue of the imposition of Section 76 penalty was not pending before the Commissioner (Appeals), thus the doctrine of merger did not apply. The Tribunal referenced the Gujarat High Court decision in J.R. Steel Industries Vs CESTAT, which held that the Revenue could seek enhancement of the penalty even if the assessee's appeal on the penalty was dismissed by the Appellate Commissioner.

2. Applicability of Section 84(4) of the Finance Act, 1994:
The appellant contended that as per Section 84(4) of the Finance Act, 1994, no review of the original order could be done when an appeal on the same issue was pending before the Commissioner (Appeals). The Tribunal noted that since the issue of the imposition of the Section 76 penalty was not before the Commissioner (Appeals), the provisions of Section 84(4) were not applicable to this case.

3. Simultaneous imposition of penalties under Sections 76 and 78 of the Finance Act, 1994:
The Tribunal referenced the Delhi High Court's judgment in Bajaj Travels Ltd Vs CST, which clarified that penalties under Sections 76 and 78 could be simultaneously imposed if the show cause notice was issued before the amendment to Section 78 on 16/05/2008. The amendment specified that penalties under Section 76 would not apply if a penalty under Section 78 was imposed. However, since the show cause notice in this case was issued before the amendment, simultaneous imposition of penalties was permissible.

4. Option of 25% reduced penalty under Section 78 of the Finance Act, 1994:
The appellant argued that the adjudicating authority did not extend the option of a 25% reduced penalty under Section 78. The Tribunal agreed, noting that the original order did not provide this option. Consequently, the Tribunal ordered that the appellant should be given the option to pay a 25% reduced penalty if all dues and the reduced penalty are paid within one month from the date of receipt of this order.

Conclusion:
The appeals filed by the appellant were allowed to the extent that the appellant was given the option to pay a 25% reduced penalty under Section 78, provided all dues and the reduced penalty are paid within one month from the date of receipt of the order. The Tribunal upheld the simultaneous imposition of penalties under Sections 76 and 78, as the show cause notice was issued before the relevant amendment. The order-in-Revision by the Commissioner was deemed valid since the issue of the Section 76 penalty was not pending before the Commissioner (Appeals), making Section 84(4) inapplicable.