2018 (7) TMI 100 - AT - Service Tax

Penalty u/s 76 of FA - penalty u/s 76 was not imposed by adjudicating authority on the ground that penalty u/s 78 has already been imposed - Held that - The demand stands raised for the period 01.10.2004 to 31.03.2010. The amendment in Section 78 was carried out w.e.f. 10.05.2008. Tribunal in the case of Ramawat Construction Co. vs. CCE, Jaipur-II 2017 (5) TMI 705 - CESTAT NEW DELHI has ordered that penalties under both Sections 76 and 78 can be imposed for the period prior to the amendment in Section 78 carried out w.e.f. 10.05.2008. Penalty u/s 76 is imposable for the period 01.10.2004 to 09.05.2008 - The lower authority is directed to quantify and impose the penalty u/s 76 for the above period - appeal allowed by way of remand.

Summary

Issues:
- Imposition of penalty under Section 76 of the Finance Act in addition to other penalties

Analysis:
The appellate tribunal heard an appeal by the Revenue against an Order-in-Original dated 17.09.2013, where the respondent was found to have failed to pay Service Tax for the period 01.10.2004 to 31.03.2010. The adjudicating authority had ordered payment of Service Tax, interest, and penalties under Sections 69, 70, and 78 of the Finance Act, 1994, but did not impose a penalty under Section 76. The Revenue contended that penalty under Section 76 should have been imposed as well. The tribunal noted that the impugned order was not challenged by the respondent and that the only ground of challenge by the Revenue was the non-imposition of penalty under Section 76.

The Revenue relied on a tribunal decision in the case of Ramawat Construction Co. vs. CCE, Jaipur-II, where it was held that penalties under both Sections 76 and 78 could be imposed for the period before the amendment in Section 78 on 10.05.2008. The tribunal referred to the amendment in Section 78, which stipulated that if a penalty was payable under that section, the provisions of Section 76 would not apply. However, the tribunal cited precedents to support the imposition of penalties under both Sections 76 and 78 for distinct offenses even if arising from the same transactions. The tribunal directed the lower authority to quantify and impose the penalty under Section 76 for the period before the amendment in Section 78, i.e., from 01.10.2004 to 09.05.2008, without interfering with the impugned order but ordering the additional penalty under Section 76.

In conclusion, the tribunal allowed the appeal filed by the Revenue, directing the imposition of penalty under Section 76 in addition to the penalties already imposed under Sections 69, 70, and 78 of the Finance Act, 1994. The decision was pronounced on 02.07.2018 by the tribunal members V. Padmanabhan and Ms. Rachna Gupta.