2017 (7) TMI 562 - AT - Service Tax

Simultaneously Penalty u/s 76 and 78 - Revenue has relied upon the decision of the Tribunal in M/s Akriti Cable Network v. Commissioner of Central Excise Jaipur 2009 (2) TMI 143 - CESTAT NEW DELHI where it was held that penalties are leviable under both the sections - Held that - The impugned order has placed reliance on the decision of the Hon ble High Court in the case of COMMISSIONER OF SERVICE TAX Versus M/s FIRST FLIGHT COURIERS LTD 2013 (11) TMI 1360 - KARNATAKA HIGH COURT which is in accordance with propriety and legality and where it was held that Appellate Authority has not applied its mind with reference to the findings and reason recorded in imposing the penalty in exercise of the power under Section 76 of the Finance Act - appeal dismissed - decided against Revenue.

Summary

Issues: Appeal against order-in-appeal for imposition of penalty under section 76 of Finance Act, 1994.

Analysis:
1. The appeal was against the order-in-appeal dated 18th February 2011, limited to the disinclination of the first appellate authority to impose a penalty under section 76 of the Finance Act, 1994.

2. The respondent did not appear, and the Tribunal heard the Learned Authorised Representative and reviewed the records. The respondent sought the tagging of its appeal against the same order, but as they were not represented, the Tribunal proceeded with the appeal of the Revenue.

3. Revenue relied on the Tribunal's decision in M/s Akriti Cable Network case to counter the lower authorities' reliance on a different High Court decision. The Tribunal discussed the conflicting decisions of various High Courts cited by both parties.

4. The Tribunal focused on the propriety of the first appellate authority in limiting the penalty to section 78 of the Finance Act, 1994. It noted that the original authority and the first appellate authority did not impose a penalty under section 76. Revenue challenged this decision, arguing that the first appellate authority did not provide justifiable reasons for not imposing the penalty.

5. The Tribunal disagreed with Revenue's contention, stating that the first appellate authority's reliance on the High Court decision was proper and legal. Therefore, the Tribunal found no reason to interfere with the non-imposition of the penalty under section 76 of the Finance Act, 1994.

6. Consequently, the appeal of Revenue was dismissed, and the cross-objection was disposed of by the Tribunal. The judgment was pronounced in court on 31/05/2017.