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TMI Blog2016 (8) TMI 548X X X X Extracts X X X X X X X X Extracts X X X X ..... as detected by the Central Excise Audit Officers. If, the audit had not detected the same, the service tax would not have been paid and the public exchequer would have been poorer by the said amount. Thus, penalty rightly imposed. Appeal dismissed – decided against appellant. - Appeal No. ST/13568/2014 - ORDER No. A/10702 / 2016 - Dated:- 9-8-2016 - Mr. P. M. Saleem, Hon'ble Member (Technical) For the Appellant : Shri Hirak Ganguly, Advocate For the Respondent : Shri Naresh Satwani, Authorised Representative ORDER Per : Mr. P. M. Saleem This appeal is filed by Shree Digvijay Cement Co Ltd., aggrieved by the impugned order-in-appeal dated 31.07.2014 passed by the Commissioner (Appeals), in which he had interalia, imposed penalty on the appellants under Section 76 of the Finance Act, 1994, as also penalty under Section 78 of the Finance Act, 1994. The appellants have contended in their appeal that in the instant case, penalties are neither imposable under Section 76 nor Section 78 of the Finance Act, 1994. 2. Heard both sides. The Learned Advocate appearing for the appellants submits that the appellants had not paid the service tax because of a bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 417 (Del.)] and the decision of the Larger Bench of Tribunal in the case of Sunil Hi-Tech Engineers Ltd. Vs. Commissioner of Central Excise, Nagpur [2014 (36) S.T.R. 408 (Tri.- Mumbai)]. 4. We have heard both sides at length and considered their contentions carefully and perused the records. It is observed that in the instant case the appellants had remitted the service tax alongwith interest before issuance of show cause notice. The issue is whether the penalties under Sections 76 and 78 are imposable under the circumstances. The provisions of the Section 76 and 78 during the relevant period were as follows:- 76. Penalty for failure to pay service tax. Any person, liable to pay service tax in accordance with the provisions of S. 68 or the rules made thereunder, who fails to pay such tax shall pay in addition to paying such tax, and interest on that tax in accordance with the provisions of S. 75, a penalty which shall not be less than one hundred rupees for every day during which such failure continues but which may extend to two hundred rupees for every day during which such failure continues, so, however, that the penalty under this clause shall not exceed the amount o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... creased by the Commissioner (Appeals), the Appellate Tribunal or, as the case may be, the court, then, for the purpose of this section, the service tax as reduced or increased, as the case may be, shall be taken in account : Provided also that in case where the service tax determined to be payable is increased by the Commissioner (Appeals), the Appellate Tribunal or, as the case may be, the court, then, the benefit of reduced penalty under the first proviso shall be available, if the amount of service tax so increased, the interest payable thereon and twenty five per cent of the consequential increase of penalty have also been paid within thirty days of communication of the order by which such increase in service tax takes effect. Explanation - For the removal of doubts, it is hereby declared that- (1) The provision of this section shall also apply to cases in which the order determining the service tax under sub-section (2) of S. 73 relates to notices issued prior to the day on which the Finance Bill, 2003 receives the assent of the President; (2) Any amount paid to the credit of Central Government prior to the date of communication of the order referred to in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 S. 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. However, no circumstances are either pleaded or proved for invocation of the said Section also. In any event we are not satisfied that an assessee who is guilty of suppression deserves such sympathy. As such, we are of opinion that the learned Single Judge was not correct in directing the 1st appellant to modify the demand withdrawing penalty under S. 76. Therefore, the judgment of the learned Single Judge, to the extent it directs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad already been imposed under Section 78 of the Act. In this scenario, the appeal of the Revenue against the said view taken by the appellate authority was dismissed holding that appellate authority was within its jurisdiction not to levy the penalty under Section 76 of the Act having regard to the fact that penalty equal to service tax had already been imposed under Section 78 of the Act. This thinking was also in consonance with the amendment now incorporated though the said amendment may not have been applicable at the relevant time. Moreover, the amount involved is ` 51,026/- only. The Court, thus, chose not to interfere with the aforesaid discretion of the Tribunal. 17. However, in the instant case, the appellate authority, including the Tribunal, has chosen to impose the penalty under both the Sections. Since the penalty under both the Sections is imposable as rightly held by Kerala High Court in Krishna Poduval (supra), the appellant cannot contend that once penalty is imposed under Section 78, there should not have been any penalty under Section 76 of the Finance Act. 18. We, thus, answer question no. 3 against the assessee and in favour of the Revenue holding tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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