9911796707
TMI Blog2013 (6) TMI 203X X X X Extracts X X X X X X X X Extracts X X X X ..... lty under Section 78 of the Act. Held that:- the department’s allegation that they had suppressed the value of the taxable service with intention to evade payment of service tax was tacitly accepted by the assessee. It is indisputable that the same constitutes one of the grounds for imposition of penalty under Section 78 of the Act. Therefore, the Commissioner’s decision to drop this penalty on the premise that the assessee did not have any intention to evade payment of service tax cannot be sustained. In so far as the amount of service tax + cesses paid by them for the normal period is concerned, there can be no corresponding penalty under Section 78 of the Act. In this scenario, the quantification of penalty under Section 78 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the non-imposition of penalties on the party. Therefore, under Section 84 of the Act, the jurisdictional Commissioner as revisionary authority issued a show-cause notice to the assessee requiring them to show-cause why penalties under Sections 76, 77 and 78 of the Act should not be imposed on them. This penal proposal was contested by the party. The impugned order was passed by the Commissioner in adjudication of this dispute. The revisionary authority dropped the proposal for imposition of penalty on the assessee under Section 78 of the Act, though it imposed penalties on them under Sections 76 and 77 of the Act. The present appeal of the department is directed against the Commissioner s decision under Section 78 of the Act. 3. On ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act was invoked to impose penalty on the assessee. The learned Additional Commissioner (AR) submits that these circumstances were tacitly acknowledged and admitted by the assessee by paying up the entire amount of service tax + education cesses with interest thereon and by not seeking to challenge the order-in-original passed by the Assistant Commissioner. Therefore, according to the learned Additional Commissioner (AR), the dropping of penal proposal under Section 78 of the Act by the Commissioner on the premise that the assessee had no intention to evade payment of service tax is legally unsustainable. As regards Section 77 penalty, it is submitted that the learned Commissioner appropriated the late fee of ₹ 14,000/- towards ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Assistant Commissioners order was not proposed to be revised under Section 84 of the Act inasmuch as no such proposal is found in the show-cause notice dated 26.02.2009 issued under Section 84 ibid. Therefore, the decision of the revisionary authority to appropriate the aforesaid amount of ₹ 14,000/- towards penalty under Section 77 of the Act is beyond the scope of the show-cause notice dated 26.02.2009 and hence unsustainable in law. That decision is set aside and the Assistant Commissioner s decision appropriating the said amount towards late fee under Section 70 read with Rule 7C is upheld. However, no penalty can be imposed on the respondent under Section 77 of the Act at this stage as the prayer of the appellant is not suppo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quantum of penalty that can be imposed on the respondent under Section 78, I find that this needs to be determined on the basis of the amount of service tax + education cesses paid by the assessee for the extended period. In so far as the amount of service tax + cesses paid by them for the normal period is concerned, there can be no corresponding penalty under Section 78 of the Act. In this scenario, the quantification of penalty under Section 78 of the Act in the instant case will be left to the original authority. 7. In the result, it is ordered as follows: a) The appropriation of ₹ 14,000/- towards penalty under Section 77 of the Act is set aside and the correct appropriation done by the original authority is upheld; b) T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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