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2015 (9) TMI 51 - CESTAT NEW DELHI

2015 (9) TMI 51 - CESTAT NEW DELHI - TMI - Simultaneous penalty u/s 76 & 78 - service tax was deposited before issuance of the show cause notice - Held that:- The appellant had been providing the impugned service since October, 2005 but had neither taken registration nor filed any returns. The service was provided under an agreement with M/s Hindustan Lever Ltd. The said agreement clearly brings out the nature of service and there was no scope for any ambiguity or doubt about the taxability ther .....

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80 - HIGH COURT OF PUNJAB AND HARYANA], even if the penalties under Sections 76 and 78 could be imposed simultaneously during the relevant period, penalty under Section76 would not be justified when penalty under Section 78 is imposed - Penalty u/s 76 is set aside - Penalty u/s 78 is upheld - Decided partly in favour of assessee. - Appeal No. ST/770/2009-CU[DB] - Dated:- 18-6-2015 - G Raghuram, President And R K Singh, Member (T),JJ. For the Appellant : Shri Naveen Bindal, Adv For the Respondent .....

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and deposited arrears of service tax and interest, on 02.05.2007. The Adjudicating authority, however, issued a notice dated 30.04.2008, calling upon the appellant to show cause why penalty should not imposed but eventually held that as service tax was deposited before issuance of the show cause notice and the appellant had furnished a bonafide explanation, penalty cannot be levied. The revisional authority, however, issued a suo moto notice calling upon the appellant to show cause why penalty b .....

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e tax continued or at the rate of two percent of such tax, per month, whichever is higher, starting with the first day after the due date till the date of actual payment of the outstanding amount of service tax in terms of Section 75 of the Act for the period 19.04.2006 onwards; iii I impose a penalty of ₹ 1,000.00 on the Noticee under Section 77 of the Act. iv I impose a penalty of ₹ 3,97,406.00 on the Noticee under Section 78 of the Act" Aggrieved by the aforesaid order, the a .....

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. M/s. Pannu Property Dealers, Ludhiana that Sections 76, 77 and 78 of the Act, do not envisage imposition of simultaneous penalties. This apart, there appears to be error in the order passed by the Tribunal holding that the appellant did not deposit 25% of penalty within one month of its impositions. The Tribunal lost sight of the fact that adjudicating authority did not impose penalty and therefore, the assessee did not get an opportunity to deposit 25% of the penalty, within one month. Conseq .....

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mp; Haryana High Court. The only issue to be decided in this case is regarding imposition of penalty. 3. The Ld. Advocate of the appellant has contended that it is not a case warranting imposition of any penalty as there was no wilful misstatement or suppression of facts on the part of the appellant. It is further contended that in any case, simultaneous penalties under Section76 and Section 78 of the Finance Act 1994 should not have been imposed and option should have been given for deposit of .....

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ces does not absolve them of the offence of suppression of facts to evade duty as has been brought out in the impugned revisionary order passed by the Commissioner. The DR Also cited a Supreme Court decision to assert that during the relevant period simultaneous penalties under Section 76 & 78 were imposable. 5. We have considered the contentions of both sides and taken note of the observations of the Punjab and Haryana High Court. The appellant had been providing the impugned service since .....

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gued that as per the Supreme Court's order in the case of BCCI versus Commissioner of Service Tax Mumbai-I - Civil Appeal Nos. 277 of 2015, during the relevant period, penalties under Section76 and Section78 could be imposed, simultaneously. We find that vide the said order the Supreme Court merely upheld the order of CESTAT without laying down any ratio inasmuch as the BCCI appeals were summarily dismissed. Further, it is to be noted that this order is being issued pursuant to and in compli .....

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