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2016 (3) TMI 575 - AT - Service TaxImposition of penalty - Whether unamended provision of Section 78 according to which 100% penalty or amended provision of Section 78 according to which 50% penalty is applicable - Adjudication was done after 8.4.2011 but offence of evasion of service tax has taken place prior to 8.4.2011 - Transactions are recorded in the books of the assessee, when the offence was taken place during the period of unameded Section 78 - Held that - there is no saving clause in Section 38A of the Central Excise Act, for saving erstwhile Section 78 of the Finance Act, nor even anything provided in the amended Section 78 regarding the non applicability of the amended provisions in the case pertaining to the period prior to amendment. In such situation amended Section 78 shall clearly apply at the time of Adjudication of the show cause notice. Therefore, the penalty is imposable equal to 50% of the Service Tax amount not paid. - Decided against the revenue
Issues Involved:
1. Applicability of Section 78 of the Finance Act, 1994 (amended vs. unamended) for imposing penalties. 2. Interpretation of Section 38A of the Central Excise Act, 1944. 3. Principle of Beneficial Construction in the context of penal provisions. Detailed Analysis: 1. Applicability of Section 78 of the Finance Act, 1994 (amended vs. unamended) for imposing penalties: The core issue in this case was whether the penalty under Section 78 should be imposed as per the unamended provision (100% of the service tax) or the amended provision (50% of the service tax) that came into effect on 8/4/2011. The Revenue argued that since the evasion occurred before the amendment, the unamended provision should apply. However, the Commissioner (Appeals) and subsequently the Tribunal held that the amended provisions should apply at the time of adjudication, as there was no saving clause in the amendment to apply the older provisions. 2. Interpretation of Section 38A of the Central Excise Act, 1944: The Revenue relied on Section 38A of the Central Excise Act, 1944, which saves legal provisions contained in rules, notifications, or orders unless a different intention appears. The Tribunal examined the legislative intent behind the amendment to Section 78 and found that the intention was to rationalize penal provisions to encourage voluntary compliance and differentiate between deliberate evaders and those who maintained truthful records. The Tribunal concluded that Section 38A could not save the unamended Section 78 since the intention behind the amendment was different, and Section 78 is not a piece of delegated legislation. 3. Principle of Beneficial Construction in the context of penal provisions: The Tribunal noted that the principle of beneficial construction should apply, which means that if a new law reduces the penalty for an offence, it should be applied to mitigate the rigour of the earlier law. The Tribunal cited the Supreme Court's judgment in T. Barai vs. Henry Ah Hoe, which held that even ex post facto laws that reduce punishment should be applied to benefit the accused. The Tribunal found that the amended Section 78, which imposes a lesser penalty, should apply as it is more beneficial to the assessee. Conclusion: The Tribunal upheld the Commissioner (Appeals)'s order, confirming that the amended provisions of Section 78, which impose a penalty of 50% of the service tax amount, should apply. The Tribunal dismissed the Revenue's appeal, emphasizing that there was no saving clause in the amendment to Section 78, and the principle of beneficial construction supports the application of the amended provision. The Tribunal found no infirmity in the impugned order and pronounced the order in court on 29.2.2016.
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