9911796707
TMI Blog2013 (1) TMI 297X X X X Extracts X X X X X X X X Extracts X X X X ..... ector, DGCEI, Nashik, demanding service tax amounting to Rs. 4,64,524/- in respect of "Franchisee service" and "business auxiliary service" provided by them from 26/07/2006 to 15/03/2007 and also proposing penal action under Section 76,77 & 78 of the Finance Act, 1994. The said notice was adjudicated by the Assistant Commissioner of Service Tax, Division -III, Mumbai vide order dated 26/08/2008 wherein he imposed a penalty of Rs. 4,64,524/- under Section 78 and Rs. 1,000/- under Section 77 of the said Finance Act. The said order was challenged by the appellant before the Commissioner (Appeals), Pune, on two grounds - one on the ground that cum tax benefits should have been granted and if that is done service tax liability would come down to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the following submissions 3.1 He submits that as per the provisions of Section 84(4) of the Finance Act, 1994, the Commissioner is barred from adjudging the matter in revision when the dispute was pending with the Commissioner (Appeals) and relies on the decision of the Tribunal in the case of Capital Color Lab Vs. CCE, Sales, reported in 2009 (14) STR 785 (Tri-Chennai) and Mani Engineering Works Vs. CCE, Sales, reported in 2008 (12) STR 721 (Tri-Chennai). He further argues that inasmuch as the Commissioner (Appeals) has dropped the penalties under Section 77 & 78 of the Finance Act, imposition of penalty under Section 76 is quite harsh, especially when there is no intention to evade service tax on the part of the appellant. 4. The Ld. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tal Color Lab case cited supra dealt with a different situation wherein the service tax liability itself was under challenge in those cases. Since the penal liability would depend upon the tax liability. It was held that no review proceedings could have been initiated under Section 76 of the Act, by the reviewing authority when the tax liability itself was challenged before the Commissioner (Appeals). In the case before me, there is no such challenge to the tax liability. The challenge is limited to only penal liability. That being the position, the ratio of these judgments cannot be applied to the facts of the present case. 5.3 On the other hand, the decision of the Hon'ble High Court of Kerala in the case of Asst. Commissioner of Central ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
