TMI Blog2010 (9) TMI 301X X X X Extracts X X X X X X X X Extracts X X X X ..... refused to interfere in the order passed by the adjudicating authority in relation to the imposition of penalty under Section 76 as well as Section 78 of the Finance Act, 1994. The same is sought to be given challenge on two grounds - firstly, that there cannot be penalty under both the provisions simultaneously; and secondly, applying the provisions of Section 80 of the said Act, the authority could not have imposed penalty in the facts and circumstances of the case. 3. The appellants are engaged in the job work of erection/installation of pipelines and they had undertaken similar work on contract basis from M/s. Jagatjit Industries Ltd., Hamira,Punjab. The same was revealed to the Department pursuant to the visit to the premises of M/s. Jagatjit Industries Ltd. On perusal of the bills raised by the appellants against the said M/s. Jagatjit Industries Ltd., it was revealed that no service tax was collected for the services rendered by the appellants. Consequently, pursuant to the investigation carried out in the matter, notice dated10th October, 2007came to be issued to the appellants. In response, the appellants admitted the fact of rendering of services and raising of bills o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat there cannot be penalty under Section 77 and 78 of the said Act at one and the same time has been well settled and followed by the Tribunal and, therefore, the authorities below erred in imposing the penalty under both the provisions simultaneously. Further, drawing attention to letter dated24th August, 2006written by the appellants to the Central Excise Commissioner, Jalandhar, it was submitted that the failure on the part of the appellants to pay the service tax in time or non-registration with the authorities was not intentional and was on account of absence of knowledge about the same. Being so, according to the learned advocate for the appellants, provisions of Section 80 of the said Act are squarely applicable and the benefit under the same should be given to the appellants. 5. The Departmental Representative, on the other hand, drawing attention to the decision of the Kerala High Court in the matter of Assistant Commissioner of Central Excise v Krishna Poduval, reported in 2006 (1) S.T.R. 185 (Ker.) and of the Tribunal in Bajaj Travels Ltd. v. CCE, Chandigarh, reported in 2009 (16) S.T.R. 183, submitted that, when the penalty imposable under Section 77 is on a count di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . P1 by withdrawing penalty levied under S. 76, is liable to be set aside and we do so. The cumulative result of the above findings would be that the Writ Petitions are liable to be dismissed and we do so. However, we do not make any order as to costs. 8. The Tribunal in Bajaj Travels Ltd. s case (supra) with reference to the said provisions of law comprised under Section 76 and 78 has held thus : 17. As regards penalty under Section 76, the same is attracted if a person liable to pay service tax in accordance with the provisions of Section 68 of the Finance Act, 1994 or the Rules made thereunder, fails to pay such tax. Since in this case the Appellant, during each month of the period of dispute have failed to discharge full service tax liability by due date resulting in huge short payment, the provisions of Section 76 would be attracted. It has been pleaded by the appellant that penalty under Section 76 as well as under Section 78 cannot be imposed when the offence is same. Such plea is untenable in view of Hon ble Kerala High Court s judgment in case of Asstt. Commissioner, Central Excise v. Krishna Poduval reported in 2006 (1) S.T.R. 185 (Ker.). It was held in that case th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a High Court, I, therefore, do not find any fault with the impugned order. 11. As regards the second ground of challenge is concerned, Section 80 of the said Act provides that, Notwithstanding anything contained in the provisions of Section 76, 77 or 78, no penalty shall be imposable on the assessee for any failure referred to in the said provisions, if the assessee proves that there was reasonable cause for the said failure. In other words, the assessee has to establish reasonable cause for the failure which could otherwise attract penalty under the said provisions of law. The letter dated24th August, 2006merely informs the Department that the appellants were not aware of the statutory provisions. Ignorance of law can never be an excuse. Besides, the provisions of law are in force since 1994. No doubt there were some amendments to Section 78 in the year 2004, but that was not relating to the main substance of the said provision of law which deals with the penalty aspect. Besides, the records nowhere disclose that in the statement dated13th September, 2005of Shri Balwinder Singh, Proprietor of the appellant firm, had disclosed about absence of knowledge of law to him. Obviously ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
