2018 (12) TMI 94 - AT - Service Tax

Simultaneous imposition of penalty u/s 76 and 78 of FA - period prior to 10/05/2008 - Held that - The Tribunal has been consistently holding that penalty under Sections 76 & 78 can be imposed simultaneously. Even Kerala High Court in the case of CCE Vs. Krishna Poduval 2005 (10) TMI 279 - KERALA HIGH COURT has observed that even if the offences are committed in the course of same transaction or arise out of the same act and thus penalties 76 and 78 can be imposed simultaneously. The contention of the department is correct and penalty under Sections 76 & 78 of the Finance Act, 1994 can be imposed simultaneously prior to 10/05/2008 - appeal allowed - decided in favor of Revenue.

Summary

Issues:
1. Imposition of penalty under Sections 76 & 78 of the Finance Act, 1994 simultaneously.
2. Retrospective application of the amendment to Section 78 of the Finance Act, 1994.

Analysis:
1. Imposition of Penalty under Sections 76 & 78:
The case involved an appeal by the Revenue against an Order-in-Appeal passed by the Commissioner of Customs, Central Excise, and Service Tax, Nagpur. The respondent was engaged in a project and classified under "works contract service." The original authority imposed a demand with interest and penalties under Sections 76, 77, and 78 of the Finance Act, 1994. On appeal, the Commissioner set aside the penalty under Section 76, citing an amendment in 2008. The department contended that penalties under Sections 76 & 78 can be imposed simultaneously, supported by various precedents. The Tribunal noted consistent decisions allowing simultaneous penalties and upheld the department's contention, allowing the appeal.

2. Retrospective Application of Amendment to Section 78:
The Revenue argued that the Commissioner erred in finding the amendment to Section 78 of the Finance Act, 1994 as retrospective. The department cited cases where simultaneous penalties were upheld, emphasizing that penalties can be imposed simultaneously at least up to 10/05/2008. The Tribunal referred to precedents, including decisions by the Kerala High Court and observations by the Karnataka High Court. The Tribunal concluded that penalties under Sections 76 & 78 can be imposed simultaneously before 10/05/2008, dismissing the respondent's appeal and allowing the department's contention.

In conclusion, the Tribunal ruled in favor of the Revenue, allowing the imposition of penalties under Sections 76 & 78 simultaneously before 10/05/2008. The decision was based on precedents, consistent interpretations, and the distinction between the penalties for failure to pay service tax and suppression of taxable service value. The Tribunal's detailed analysis and reference to relevant legal precedents supported the decision, providing clarity on the application of penalties under the Finance Act, 1994.