2009 (2) TMI 143 - AT - Service Tax

Penalty under section 76 and 78 simultaneously willful suppression - authorities below held that the assessee had not only willfully suppressed the material information, but also suppressed the taxable value; hence was liable to penalty both under Sections 76 and 78 Held that penalties are leviable under both the sections - contention of the assessee, that the explanation to Section 78 which provides that the provision of this Section shall also apply to cases in which the order determining the service tax under sub-section (2) of Section 73 relates to notices issued prior to the day on which the Finance Bill, 2003 receives the assent of the President, rejected.

Summary

Issues:
Challenge to imposition of penalty under Sections 76 and 78 of the Finance Act, 1994.

Analysis:
The judgment delivered by Ms. Jyoti Balasundaram, Vice President of the Appellate Tribunal CESTAT, New Delhi, dealt with the challenge to the imposition of penalties under Sections 76 and 78 of the Finance Act, 1994. The Tribunal found that the assessee had willfully suppressed material information and taxable value, making them liable for penalties under both sections. The Tribunal referred to the decision in Commissioner of Central Excise, Ludhiana Vs Silver Oak Gardens Resort, 2008 (9) STR 481, which stated that penalty under Section 76 might not be warranted if imposed under Section 78. However, the judgment of the Hon'ble Kerala High Court in Assistant Commissioner of Central Excise Vs Krishna Poduval, 2006 (1) STR 185 (Ker.) emphasized that penalties under Sections 76 and 78 are distinct and separate, even if offenses arise from the same transaction. Following the Kerala High Court's decision, the Tribunal upheld the penalties imposed under both sections, rejecting the assessee's argument regarding the application of the explanation to Section 78. The Tribunal clarified that the penalty under Section 76 could still be imposed despite the provisions of the last proviso to Section 78, as the Service Tax demand was issued after the Finance Bill, 2003 received the assent of the President.

In conclusion, the appeal challenging the penalties under Sections 76 and 78 of the Finance Act, 1994 was rejected by the Tribunal. The judgment was dictated and pronounced on the 5th day of February, 2009, by Ms. Jyoti Balasundaram, Vice President of the Appellate Tribunal CESTAT, New Delhi.