2018 (5) TMI 1425 - HC - Service Tax

Simultaneous penalty u/s 76 and 78 - Whether simultaneous penalties under sections 76 and 78 of the Finance Act, 1994 could have been imposed? - Held that - issue is already covered by judgment of Division Bench of this Court in case of Raval Trading Company v. Commissioner of Service Tax 2016 (2) TMI 172 - GUJARAT HIGH COURT , where it was held that Section 76 of the Finance Act, 1994, would cover only the cases of nonpayment of service tax which are not related to fraud, collusion, willful misstatement, suppression of facts or contravention of any of the provisions of the said Chapter or the rules made thereunder with the intent to evade payment of service tax since legislature had already provided for penalty in Section 78 in such situations. Thus further proviso to Section 78 made it explicit which was till then implicit - simultaneous penalty under section 76 and 78 of the Finance Act, 1994 cannot be imposed - appeal dismissed - decided against Revenue.

Summary

Issues Involved:
Whether simultaneous penalties under sections 76 and 78 of the Finance Act, 1994 could have been imposed.

Analysis:
The High Court considered the appeal filed by the department challenging the judgment of CESTAT dated 13.6.2017. The main question for consideration was whether simultaneous penalties under sections 76 and 78 of the Finance Act, 1994 could have been imposed. The Court referred to a judgment of the Division Bench in the case of Raval Trading Company v. Commissioner of Service Tax, which highlighted the differences between penalties under sections 76 and 78. Section 78 provided for a penalty in cases of tax evasion due to fraud or collusion, while Section 76 covered nonpayment of tax for any reason. The Court noted that the introduction of a proviso to Section 78 clarified that when a penalty was imposed under Section 78, no further penalty could be levied under Section 76. This proviso was seen as a clarificatory amendment, ensuring that Section 76 would cover only cases not related to fraud or willful misstatement. The Court also cited similar views expressed by other High Courts, including Punjab and Haryana High Court and Karnataka High Court.

The Court acknowledged a judgment of the Kerala High Court brought to its notice by the department's counsel but emphasized that when a decision by the Court is already rendered, they are bound by such decision. Therefore, the Court dismissed the tax appeal filed by the department challenging the imposition of simultaneous penalties under sections 76 and 78 of the Finance Act, 1994.