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TMI Blog2023 (3) TMI 129X X X X Extracts X X X X X X X X Extracts X X X X ..... he respondent and the present appeal has been filed by the Department to assail the quantification of the penalty that has been imposed under section 76 of the Finance Act. The Tribunal had not examined this issue and so the respondent cannot be permitted to urge that this issue cannot be raised by the Department in this appeal. Levy of penalty imposed under section 76 of the Finance Act - HELD THAT:- The matter has to be remitted to the Commissioner to take a decision after the demand is re-quantified pursuant to the earlier decision dated 22.12.2016 of the Tribunal. The penalty imposed under section 76 of the Finance Act in regard to the first show cause notice is set aside. With regard to the penalty imposed under section 76 of the Finan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e clients, which was subjected to VAT, as being deemed sale. 4. However, three show cause notices were issued alleging that the above activities of the respondent were taxable under the category of 'rent-a-cab-operator' services under the Finance Act. Accordingly, a demand of Rs. 22,27,21,182/- was proposed for the disputed period 01.10.2005 to 30.09.2012 with interest under section 75 of the Finance Act and penalties under sections 76, 77 and 78 of the Finance Act. 5. The Commissioner, by a common order dated 31.12.2014, confirmed the proposed demand under the taxable category 'rent-a-cab-operator' services along with interest and penalties as under: Show Cause Notice Date Period Invoked Demand (In Cr.) Penalty under section 76 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g with the first day after the due date till the date of actual payment of the outstanding amount of service tax: Provided that the amount of the penalty payable in terms of this section shall not exceed fifty percent of the service tax payable. 7. It is necessary to examine how the Commissioner has dealt with the imposition of penalty under section 76 of the Finance Act and the relevant portion of the order passed by the Commissioner is reproduced below: "38.4 The noticee has also submitted that the simultaneous penalty under the Section 76 and 78 cannot be imposed as they are mutually exclusive as provided in the proviso to the section 78 itself. I have gone through this point and see that the demand relates to the period 2005-06 (Oct- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Finance Act' 1994. ***** (iii) IIIrd Show Cause Notice dated 21.03.2013 ***** (ii) I impose a penalty of Rs. 27,57,000/- (Rupees twenty seven lac fifty seven thousand only) on M/s Carzonrent (India) Pvt. Ltd., under Section 76 of the Finance Act'1994." 9. Shri Harshvardhan, learned authorized representative appearing for the appellant submitted that in view of the provisions of section 76 of the Finance Act, the quantum of penalty could not have been pre-determined and finalized at the time of passing of the order since the penalty has to be reckoned starting with the first day after the due date till the date of actual payment of the outstanding amount of service tax. 10. Shri A.K. Batra, learned chartered accountant for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the respondent have been considered. 12. The first submission advanced by the learned chartered accountant for the respondent that the appeal filed by the Department has been rendered infructuous since the impugned order had merged with the order of the Tribunal cannot be accepted. The Tribunal was considering the submissions advanced by the appellant in the appeal filed by the respondent and the present appeal has been filed by the Department to assail the quantification of the penalty that has been imposed under section 76 of the Finance Act. The Tribunal had not examined this issue and so the respondent cannot be permitted to urge that this issue cannot be raised by the Department in this appeal. 13. In the appeal filed by the resp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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