2009 (8) TMI 617 - AT - Service Tax

Penalty u/s 76 and 78 simultaneously waiver of penalty reason not given by the commissioner (Appeal) to waive penalty - In this case (Tri-Del) held that the order of the Ld. Commissioner granting immunity from section 76 is reversed. Revenue succeed in this appeal and penalty imposed by Ld. Adjudicating Authority sustains.

Summary

Issues:
1. Waiver of penalty under Section 76 of the Finance Act, 1994.
2. Immunity from penalty under Section 76 and Section 78 of the Finance Act, 1994.
3. Reversal of order granting immunity from penalty.
4. Sustaining penalty imposed by the Adjudicating Authority.
5. Quantification of penalty demand under Section 76.
6. Disposal of stay application and appeal of Revenue.

Analysis:

1. The issue in this case revolves around the waiver of penalty under Section 76 of the Finance Act, 1994. The learned Commissioner had waived the penalty, which was appealed by the Revenue. The Revenue argued that there were no reasons provided for the waiver and referenced a Tribunal decision to support their appeal.

2. The Tribunal considered the issue of immunity from penalty under both Section 76 and Section 78 of the Finance Act, 1994. In a previous case, it was held that in the absence of an express provision during the material period, the levy of penalty under both sections was not immune. This precedent was cited to reverse the order granting immunity from Section 76 of the Finance Act, 1994.

3. Consequently, the Tribunal ruled in favor of the Revenue, reversing the order of the learned Commissioner and sustaining the penalty imposed by the Adjudicating Authority. However, it was noted that the Adjudicating Authority needed to quantify the demand in respect of the penalty under Section 76, and recovery proceedings were to follow in accordance with the law.

4. Despite the matter being fixed for a stay application, the Tribunal decided to dispose of both the stay application and the appeal of the Revenue. With the issue no longer being in res integra and in the absence of the respondent, the Tribunal found it unnecessary to keep the matter pending. The decision rendered the Revenue's stay application infructuous.

In conclusion, the Tribunal's judgment addressed the waiver of penalty under Section 76, the issue of immunity from penalties under different sections of the Finance Act, and the quantification and imposition of penalties in accordance with the law. The decision ultimately favored the Revenue, reversing the order of immunity granted by the Commissioner and upholding the penalty imposed by the Adjudicating Authority.