2010 (3) TMI 126 - AT - Service Tax

Rent-a-cab service - The service tax demand was confirmed and penalties were imposed on the ground that during the period October, 2000 to September, 2005, the respondent was providing the taxable service to various clients without obtaining registration and without payment of service tax and without observing other formalities. - Commissioner (Appeals) vide impugned Order-in-Appeal dated 6.2.2009, while upholding the penalty under Section 78 set aside the penalty imposed under Section 76 on the ground that the penalties under Section 76 & 78 cannot be imposed together. Held that During the relevant period penalties u/s 76 and 78 could be imposed at the same time - this issue stands decided in favour of the Revenue by the Hon ble Kerla High Court in the case of Krishna Poduval (2010 -TMI - 75949 - Kerala High Court) Order of commissioner (appeals) setting aside the penalty u/s 76 is not sustainable decided in favor of revenue

Summary

Issues:
1. Whether Press Reporters may be allowed to see the order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2. Whether the order would be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3. Whether their Lordships wish to see the fair copy of the order?
4. Whether the order is to be circulated to the Departmental authorities?

Analysis:

Issue 1: Press Reporters' Access for Publication
The judgment pertains to a case where the respondent provided taxable Rent-a-Cab Scheme Operator services. The Assistant Commissioner confirmed a service tax demand, interest, and imposed various penalties under different sections of the Finance Act, 1994. On appeal, the Commissioner (Appeals) upheld some penalties but set aside one penalty under Section 76. The department appealed against this decision. The Tribunal noted that the issue was whether penalties under Section 76 & 78 could be imposed simultaneously. Citing judgments from the Hon'ble Kerala High Court and the Tribunal, the Tribunal held in favor of the Revenue, setting aside the penalty under Section 76 and restoring the Asst. Commissioner's order. The appeal was allowed.

Issue 2: Respondent's Absence in Proceedings
Despite issuing a notice to the respondent, no appearance was made on their behalf during the proceedings. As a result, the Tribunal proceeded with the case in the absence of the respondent, stating there was no point in waiting further for their appearance for a personal hearing.

Issue 3: Legal Precedents and Submissions
The learned D.R. argued that the impugned order was incorrect, citing a judgment from the Hon'ble Kerala High Court. The Tribunal considered the submissions and reviewed the record to determine the validity of imposing penalties under Section 76 & 78 simultaneously. Relying on legal precedents from the Hon'ble Kerala High Court and the Tribunal, the Tribunal concluded that the penalty under Section 76 should not have been set aside, and thus, restored the Asst. Commissioner's order.

Conclusion:
The judgment addressed the imposition of penalties under different sections of the Finance Act, 1994 on a respondent providing taxable services. It highlighted the issue of simultaneous imposition of penalties under Section 76 & 78, ultimately ruling in favor of the Revenue based on legal precedents. The Tribunal proceeded with the case in the absence of the respondent and allowed the appeal filed by the department against the Commissioner (Appeals) decision.