TMI Blog2014 (6) TMI 276X X X X Extracts X X X X X X X X Extracts X X X X ..... show cause notices were issued to them in the year 2010/2011. - Decided in favor of revenue. Regarding monetary limit for filing appeal - Held that:- Amount of service tax evasion in each case is less than the monetary limit of five lac rupees. Appeals in these four cases were filed by the Revenue on 05.12.2012 when the CBEC Circular F. No. 390/ Misc./ 163/ 2010-JC dated 17.08.2011 was in force, which directed the field formations not to file appeals before the CESTAT where the amount involved is up to five lac rupees. Obviously, the Revenue should not have filed any appeal against these four persons, as the directions contained in CBEC circulars are binding on Departmental Officers - Decided against the revenue. - Appeal No. : ST/438, 439, 440, 441, 516/2012 - ORDER No. A/10912-10916/2014 - Dated:- 11-4-2014 - Mr. H.K. Thakur, J. For the Appellant : Shri Manoj Kutty (AR) For the Respondent : Shri Naitk Mehta (CA) JUDGEMENT Per : Mr. H.K.Thakur,; 1. As the issues involved in the following appeals filed by the Revenue are the same, these are being taken up together for disposal through this common order: S. No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 76 of the Act for the period up to 09.05.2008 in addition to penalty imposed under Section 78. The Commissioner (Appeals) dismissed the Revenue s appeals vide the impugned Orders-in-Appeal following the aforesaid decisions. In the case of respondent at S. No. 4 of the above Table, the original adjudicating authority imposed penalties on the respondent under Section 76 as well as Section 78 of the Act, but on appeal by the respondent, the Commissioner (Appeals), vide his impugned Order-in-Appeal, set aside the penalty imposed Section 76 following the above decisions of the High Courts and the Tribunal. 3. Shri Manoj Kutty, Ld. AR for the appellants, argued as follows: (i) That the amendment made in Section 78 by way of insertion of the proviso with effect from 10.05.2008 has only prospective effect. He argued that whenever law is amended, the amended law has prospective effect. He cited the following case laws in this context: (a) Marcandy Prasad Radhakrishna Prasad Pvt. Ltd. Vs. CCE, Cal.-II [1998 (102) ELT 705 (Tribunal)]; (b) Commissioner of Central Excise, Coimbatore Vs. ELGI Equipments Ltd. - [2001 (128) ELT 52 (S.C.)]; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the circulars, issued by the CBEC, are binding on the Departmental officers, and thus no appeal should have been filed by the Revenue in their case. The respondent cited Para 5 of the case law - Paper Products Ltd. Vs. CCE (1999) 7 SCC 84 - [1999 (112) ELT 0765 (S.C.)] as under: 5. It is clear from the above said pronouncements of this Court that, apart from the fact that the Circulars issued by the Board are binding on the Department, the Department is precluded from challenging the correctness of the said Circulars even on the ground of the same being inconsistent with the statutory provision. The ratio of the judgment of this Court further precludes the right of the Department to file an appeal against the correctness of the binding nature of the Circulars. Therefore, it is clear that so far as the Department is concerned, whatever action it has to take, the same will have to be consistent with the Circular which is in force at the relevant point of time. (iii) The Commissioner (Appeal) has correctly rejected the Revenues appeal as penalty could be imposed on them only under the provisions in force at the time of issuance of show cause notice o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... levator Co. (I) Ltd. in Central Excise Appeal No. 110 of 2004. In this case the Hon ble High Court held as under: 16. On the above back drop, considering the weight of authorities, the judgment of the Apex Court in Lal Mining Engg. Works and Elgi Equipments Ltd. (both cited supra) need to be followed since the view taken therein is better in point of law which, unequivocally, hold that section 11AC of the Act being a penal provision providing for mandatory penalty cannot have retrospective operation as such it cannot be invoked in a case where the period of dispute or offence is prior to 28th September, 1996 i.e. prior to its enactment. Similarly, the Hon ble Delhi High Court held in the case of Bajaj Travels Ltd. Vs. Commissioner of Service Tax - [2012 (25) STR 417 (Del.)] as under: 16. No doubt, Section 78 of the Act has been amended by the Finance Act, 2008 and the amendment provides that in case where penalty for suppressing the value of taxable service under Section 78 is imposed, the penalty for failure to pay service tax under Section 76 shall not apply. With this amendment the legal position now is that simultaneous penalties under bot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 76 and 78 of the Act. We are in agreement with the aforesaid rule. 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. In view of the above findings, I hold that penalties under both Sections 76 and 78 were imposable simultaneously on the respondents for failure to pay service tax for the period prior to 10.05.2008 although show cause notices were issued to them in the year 2010/2011. 8. Regarding the third issue I find that out of the five appeals under consideration, only one appeal filed by the Revenue against respondent at S. No. 4 of the Table in Para 1 above, involves evasion of service tax of more than five lac rupees (actual tax evasion Rs. 5,64,345/-). In the remaining cases, the amount of service tax evasion in each case is less than the monetary limit of five lac rupees. Appeals in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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