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2016 (12) TMI 997 - AT - Service TaxWhether penalty of ₹ 43,819/-enhanced by First Appellate Authority under OIA dated 24.07.2012, read with ROM order dated 16.08.2012, is sustainable or not? Held that - imposition of penalty under Section 78 of the Finance Act was not the subject matter of the show cause notice and OIO passed by the Adjudicating Authority and the appeal filed by Revenue. Therefore, First Appellate Authority has gone beyond the scope of the proceedings to hold liability of penalty under Section 78 of the Finance Act, 1994. Revenue has not filed any appeal against OIA dated 24.07.2012 and ROM order dated 16.08.2012 to contest that Commissioner(Appeals) has wrongly upheld imposition of penalty under Section 78 of the Finance Act, 1994 - appeal filed by the appellant with respect to enhanced penalty of ₹ 43,819/- is required to be allowed by setting aside the orders passed by the First Appellate Authority - appeal allowed by way of remand.
Issues:
1. Appeal against Order-in-Appeal enhancing penalty under Section 78 of the Finance Act, 1994. 2. Imposition of penalty under Section 78 by the First Appellate Authority beyond the scope of the proceedings. Analysis: Issue 1: The appellant filed an appeal against Order-in-Appeal No. 20/DIB/CE(A)/GHY/12 dated 24.07.2012 and ROM Order No.01/ROM/DIB/CE(A)/GHY/12 dated 16.08.2012, where the First Appellate Authority enhanced the penalty by ?43,819 under Section 78 of the Finance Act, 1994. The Adjudicating Authority had initially confirmed a demand of ?43,819 along with interest but did not impose an equivalent penalty under Sections 76 and 77 of the Finance Act, 1994. The Revenue sought an enhancement of penalty by ?43,819 under Sections 76 and 77, leading to the First Appellate Authority allowing the appeal by imposing the penalty under Section 78. Issue 2: The crucial question was whether the enhanced penalty of ?43,819 imposed under Section 78 by the First Appellate Authority was sustainable. The appellant did not file any appeal against the initial penalty imposed under Sections 76 and 77. It was noted that the imposition of penalty under Section 78 was not part of the show cause notice, the Order-in-Original, or the appeal filed by the Revenue. The First Appellate Authority exceeded the scope of the proceedings by holding the appellant liable for penalty under Section 78 without proper grounds. As the Revenue did not challenge the decision, the imposition of penalty under Section 78 was deemed inappropriate and beyond the authority of the First Appellate Authority. In conclusion, the Tribunal found that the First Appellate Authority had erred in imposing the penalty under Section 78 without proper basis and beyond the scope of the proceedings. Therefore, the appeal filed by the appellant against the enhanced penalty of ?43,819 was allowed, and the orders passed by the First Appellate Authority were set aside.
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