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TMI Blog2005 (10) TMI 279X X X X Extracts X X X X X X X X Extracts X X X X ..... es are distinct and separate. Perhaps invoking powers under section 80 of the Finance Act, the appropriate authority could have decided not to impose penalty on the assessee if the assessee proved that there was reasonable cause for the said failure in respect of one or both of the offences. - penalties 76 and 78 can be imposed simultaneously. - - - - - Dated:- 20-10-2005 - JUDGMENT S. Siri Jagan, J. The issues involved in these two appeals are identical. Therefore, the two appeals are disposed of by this common judgment. The matter relates to payment of service-tax, interest and penalty under the Finance Act, 1994, by the respondent in each of the two appeals. The revenue is the appellant in both the appeals. Notices were issued to the respondents in these two appeals directing them to show-cause why service-tax amounting to Rs. 27,425 and Rs. 33,450, respectively, along with interest as applicable under section 75, as also penalty under sections 76 and 78 of the Finance Act, 1994, should not be recovered from them for failure to pay service-tax and suppression of the value of taxable service with intent to evade payment of service-tax. The showcause notices culminated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the imposition of penalty under sections 76 and 78 of the Act is for non-payment of service-tax and suppression of value of taxable service, respectively which are two distinct and separate offences attracting separate penalties and, therefore, both are imposable against the respondents in the two appeals. On the other hand, the learned counsel for the respondents submitted that the offences alleged against the respondents arose from the same transaction constituting only one offence and, therefore, imposition of penalty under both the sections are unwarranted and unsustainable. We have considered the arguments of both sides in detail. However, we are unable to agree with the arguments advanced by the counsel for the respondents for reasons hereinafter appearing. At the outset we may state that insofar as the respondents have not taken up the original orders imposing penalty in appeals before the appellate authority within the maximum period prescribed under section 85(3) of the Finance Act, 1994, they cannot get the appeals revived and heard on merits by resorting to the discretionary remedy before this court under Article 226 of the Constitution of India. Once the period ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... warranting interference, even if we had the jurisdiction to do so. In this connection, we feel it apposite to quote a passage from the decision of the Supreme Court in CST v. Parson Tools Plants (1975) 35 STC 413 (SC) cited by the learned Assistant Solicitor General which reads thus : Thus, the principle that emerges is that if the legislature in a special statute prescribes a certain period of limitation for filing a particular application thereunder and provides in clear terms that such period on sufficient cause being shown, may be extended, in the maximum, only up to a specified time-limit and no further, then the Tribunal concerned has no jurisdiction to treat within limitation, an application filed before it beyond such maximum time-limit specified in the statute, by excluding the time spent in prosecuting in good faith and due diligence any prior proceeding on the analogy of section 14(2) of the Limitation Act. We have said enough and we may say it again that where the legislature clearly declares its intent in the scheme and language of a statute, it is the duty of the court to give full effect to the same without scanning its wisdom or policy, and without engr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so, however, that the penalty under this clause shall not exceed the amount of service-tax that he failed to pay. 78. Penalty for suppressing value of taxable service.-If the Assistant CCE or, as the case may be, Deputy CCE in the course of any proceedings under this Chapter is satisfied that any person has, with intent to evade payment of service-tax, suppressed or concealed the value of taxable service or has furnished inaccurate value of such taxable service, he may direct that such person shall pay by way of penalty, in addition to service-tax and interest, if any, payable by him, a sum which shall not be less than, but which shall not exceed twice, the amount of service-tax sought to be evaded by reason of suppression or concealment of the value of taxable service or the furnishing of inaccurate value of such taxable service : Where any service-tax has not been levied or paid or has been short-levied or short-paid or erroneously refunded, by reason of-- (a) fraud, or (b) collusion, or (c) wilful mis-statement, or (d) suppression of facts, or (e) contravention of any of the provisions of this Chapter or of the rules made thereunder with intent to evade pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt due from such person.) The penalty imposable under section 76 is for failure to pay service-tax by the person liable to pay the same in accordance with the provisions of section 68 and the rules made thereunder, whereas section 78 relates to penalty for suppression of the value of taxable service. Of course these two offences may arise in the course of the same transaction, or from the same act of the person concerned. But we are of opinion that the incidents of imposition of penalty are distinct and separate and even if the offences are committed in the course of same transaction or arises out of the same act, the penalty is imposable for ingredients of both the offences. There can be a situation where even without suppressing value of taxable service, the person liable to pay service-tax fails to pay. Therefore, penalty can certainly be imposed on erring persons under both the above sections, especially since the ingredients of the two offences are distinct and separate. Perhaps invoking powers under section 80 of the Finance Act, the appropriate authority could have decided not to impose penalty on the assessee if the assessee proved that there was reasonable cause for t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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