2011 (4) TMI 535 - AT - Service Tax

Penalty u/s 76 - when the penalty under Section 78 of the Finance Act has been confirmed, whether penalty under Section 76 ibid is leviable or not - Held that - the show-cause notice has been issued when the provision of proviso 5 to Section 78 ibid were in force, therefore as held by the lower appellate authority, the penalty under Section 76 ibid is not imposable when penalty under Section 78 ibid is imposable - As per the decision of CCE vs. Silver Oak Gardens Resort 2007 -TMI - 3438 - CESTAT, NEW DELHI Decided in favour of assessee.

Summary

Issues:
Appeal against dropping penalty under Section 76 of the Finance Act, 1994.

Analysis:
1. The case involved a show-cause notice issued to the respondent for failing to pay service tax for construction of residential complexes after crossing the threshold limit. Penalties were imposed under Sections 76, 77, and 78 of the Finance Act, 1994.

2. The revenue appealed against the order dropping the penalty under Section 76. The argument was that penalties under Sections 76 and 78 are distinct for different offenses. The revenue contended that since both offenses were committed, penalties should be imposed under both sections.

3. The respondent argued that the show-cause notice was issued when the proviso 5 to Section 78 was in force, which states that if a penalty under Section 78 is imposed, penalty under Section 76 is not applicable. The respondent cited relevant case laws to support their position.

4. The main issue was whether the penalty under Section 76 was leviable when the penalty under Section 78 had been confirmed. The tribunal noted that the show-cause notice was issued when proviso 5 to Section 78 was in force, making the penalty under Section 76 not applicable if the penalty under Section 78 was imposed.

5. The tribunal found that the decisions cited by the revenue were not relevant to the case as they were for a period before the introduction of proviso 5 to Section 78. Therefore, the penalty under Section 76 was not imposable when the penalty under Section 78 was applicable. The tribunal upheld the lower appellate authority's decision, rejecting the revenue's appeal.