2017 (11) TMI 614 - AT - Service Tax

GTA service - non-payment of service tax - validity of appeal before the Commissioner (Appeals) against the adjudication order - Held that - Revision proceedings are not permitted when the issue in question is pending in appeal before the Commr. Of Central Excise (Appeals). Penalty u/s 76 - Held that - There is no attempt on the part of the appellant to distinguish the facts of the case in respect of imposition of penalty under Sec. 76 as imposed by the Commr. Of Central Excise. Therefore, I do not find any reason to interfere with the impugned order. Appeal dismissed - decided against appellant.

Summary

Issues: Appeal against imposition of penalty under Section 76 of the Finance Act, 1994.

Analysis:
1. Facts of the Case: The appellant, engaged in manufacturing Silico Manganese and Ferro Manganese, was issued a Show Cause Notice for non-payment of service tax on GTA service. The adjudicating authority confirmed a demand for service tax, education cess, and imposed a penalty under Section 78 of the Finance Act, 1994. The Revenue filed a Revision of the Adjudication Order seeking penalty under Section 76.

2. Revision Proceedings: The appellant contended that Revision proceedings cannot be sustained as per Section 84(4) of the Finance Act, 1994, which prohibits passing orders if an appeal on the same issue is pending. However, the Commissioner of Central Excise imposed a penalty under Section 76, not pending in appeal, and rejected the appellant's argument.

3. Imposition of Penalty under Section 76: The appellant argued against the imposition of penalty under Section 76, stating that the Adjudicating Authority did not impose such penalty initially. The Commissioner of Central Excise, in the impugned order, justified the imposition of penalty under Section 76, highlighting the evasion of service tax and the mandatory nature of penalty for non-payment of service tax.

4. Decision: The Commissioner upheld the imposition of penalty under Section 76, emphasizing the necessity of penalty for non-payment of service tax. The appellant's argument that penalty under both Section 76 and 78 is not imposable was dismissed due to lack of distinction in the case facts. The appeal was rejected based on the detailed findings and lack of merit in the appellant's submissions.

In conclusion, the judgment upheld the imposition of penalty under Section 76 of the Finance Act, 1994, emphasizing the mandatory nature of penalties for non-payment of service tax and rejecting the appellant's arguments against the imposition of penalties.