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TMI Blog2014 (7) TMI 705X X X X Extracts X X X X X X X X Extracts X X X X ..... the penalty of ₹ 24,250/-, imposed by the primary authority under Section 78. This amount is in excess of 50% of enhanced penalty of ₹ 44,864/- imposed by the Revisional Authority. Therefore this is sufficient compliance with the requirement of remittance required under the 2nd proviso to Section 78. - Decided in favor of assessee. Regarding penalty u/s 77 - held that:- since discretion was exercised by the Primary Authority for levying the penalty under Section 77 at ₹ 1000/-, in the absence of a perversity in exercise of the discretion found by the Revisional Authority, we find no justification for enhancement of the penalty to ₹ 2000/- - enhanced penalty set aside - Decided partly in favor of assessee. - Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he demand relatable to the consideration received towards services which amounted to Manpower Recruitment and Supply Agency service, an aspect not relevant for the purposes of this appeal as this is not in contest. 4. We spent some amount of time in identifying the date the primary adjudication order was passed by the Additional Commissioner, Raipur. The cover page of the order, as communicated to the assessee and filed along with the appeal, reveals bears a plurality of dates - 31.08.2006/9.10(-). The Order-in-Original Number is however set out as 156/S.T./RPR/ADC dated 31.8.2006, as also on the cover page. The order however purports to have been signed by one Shri R.P. Meena, Additional Commissioner, on 27.9.2006.; this being the dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us, they suppressed the taxable value received druign the year 1999-2000 and 2000-2001.They paid the service tax due only after the department initiated enquiry against them. Thus, the circumstances prove that they suppressed the material facts from the department. I therefore , intent to invoke the provisions of Section 73 of the Finance Act, 1994 and hold that the Noticee was liable to pay the service tax on the security agency services rendered by them during the said period. At paragraphs 5 and 6 of the impugned order and for reasons recorded therein, penalties under Sections 76 and 78 were enhanced to ₹ 44,864/- against penalty of ₹ 24,252/- each, imposed by the primary authority; the penalty of ₹ 500/- imposed und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enue that the date is the date on which adjudication order is dispatched by the office. These are unwholesome and sub-standard procedural deficits which are almost entrenched as a practice. It is axiomatic that the legitimacy of an adjudication order is predicted upon the currency of jurisdiction in an officer, to pass an adjudication order. The officer who passes an adjudication order should have the jurisdiction and must be holding the relevant office on the date the adjudication order is passed, namely, on date he/she signs the order, thereby signifying the finality of the contents and that the order is beyond locus penitentii. 8. In the present case we note that the primary adjudication order is signed by the Additional Commissioner, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n earlier decision of Kerala High Court in Assistant Commissioner vs. Krishna Poduval -2006 (1) STR 185 (Ker.), that prior to amendment of Section 78 of the Act, penalties under both Section 76 and Section 78 could be imposed as the two provisions deal with different categories of transgressions. We do notice the conflict in judicial opinion, between decisions of the Kerala and Delhi High Courts taking one view and the Punjab and Haryana and the Karnataka High Courts taking the other. Be that as it may. 10. The primary adjudication order passed by Additional Commissioner, Raipur dated 27.9.2006 imposed penalties under Sections 76 and 78 of the Act but no appeal was preferred there against by the appellant. Hence that order has attained f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #8377; 1000/-. In any event, since discretion was exercised by the Primary Authority for levying the penalty under Section 77 at ₹ 1000/-, in the absence of a perversity in exercise of the discretion found by the Revisional Authority, we find no justification for enhancement of the penalty to ₹ 2000/-. This part of revisional order is therefore unsustainable and is quashed. 13. Ld. Counsel for the appellant contends rightly that the appellant would be entitled to the benefits of the second proviso to Section 78 of the Act, namely the facility to remit 25% of the penalty determined under Section 78, if service tax and interest is remitted within 30 days of communication of the adjudication order. Such option was not indicated ..... X X X X Extracts X X X X X X X X Extracts X X X X
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