2011 (1) TMI 52 - HC - Service Tax

Simultaneous penalty u/s 76 and 78 Held that - Section 76 provides for penalty for failure to pay the amount while Section 78 provides for penalty for suppressing the taxable value. Section 78 is, thus, more comprehensive and provides for higher amount. Even if technically, the scope of sections 76 and 78 is different, penalty under Section 76 may not be justified if penalty had already been imposed under Section 78.

Summary

Issues:
1. Appeal under Section 35G of the Central Excise Act, 1944 read with Section 83 of the Finance Act, 1994.
2. Imposition of penalty under Sections 76 and 78 of the Act.
3. Interpretation of penalty provisions under Section 76 and Section 78.
4. Consideration of penalty imposition before and after the amendment of Section 78 of the Finance Act, 1994.

Analysis:

Issue 1: Appeal under Section 35G of the Central Excise Act, 1944 read with Section 83 of the Finance Act, 1994
The appeal was filed by the revenue against the order passed by the Customs Excise and Service Tax Appellate Tribunal. The substantial questions of law raised in the appeal included the legality of the judgment and the imposition of penalties under the Act.

Issue 2: Imposition of penalty under Sections 76 and 78 of the Act
The assessee, a service provider, was found to have short-paid service tax for a specific period. The department confirmed the demand for tax and imposed penalties under Sections 76 and 78 of the Act. On appeal, the demand for service tax was upheld, but the penalty under Section 78 was reduced to 25% due to prompt payment. However, the penalty under Section 76 was set aside by the Tribunal, stating that penalties under both sections could not be imposed simultaneously.

Issue 3: Interpretation of penalty provisions under Section 76 and Section 78
The main argument presented was regarding the imposition of penalties under both Section 76 and Section 78. The appellant contended that penalties under both sections could be levied for the period before the relevant amendment date. However, the Court disagreed, stating that Section 78 is more comprehensive and provides for a higher penalty amount. The Court cited a previous judgment to support the view that if penalty under Section 78 had been imposed, penalty under Section 76 may not be justified.

Issue 4: Consideration of penalty imposition before and after the amendment of Section 78 of the Finance Act, 1994
The Court referred to a previous case to emphasize that even though the technical scopes of Sections 76 and 78 may differ, the imposition of penalty under Section 78 could influence the decision on imposing penalty under Section 76. The Court concluded that no substantial question of law arose in this case and dismissed the appeal based on the interpretation of penalty provisions and relevant legal precedents.