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Industrial Security & Protection Services Versus Commissioner of Service Tax, Mumbai-I

2016 (1) TMI 209 - CESTAT MUMBAI

Levy of penalty u/s 76 & 78 - Security Agency Services - appellant is not contesting demand of service tax and interest thereupon, which was already paid by the Appellants - Held that:- various High Courts and this Tribunal consistently held that once the penalty under Sec 78 has been imposed, no penalty under Sec 76 can be imposed - the penalty imposed under Sec 76 is set aside, the penalty imposed under Sec 78 is reduced to 25% of ₹ 6,25,118/- subject to its deposit within 30 days from t .....

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passed by the Commissioner (Appeals), Central Excise, Mumbai Zone-1, wherein the Ld. Commissioner upheld the Order-in-Original No. 56/2008 dtd. 10/11/2008 and accordingly rejected the appeal filed by the appellant. 2. The fact of the case is that the appellants are engaged in providing the services of Security Agency and for which they hold Service Tax registration under Section 69 of the Finance Act, 1994. During the scrutiny of records at the time of Audit, it was observed that the proprietar .....

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/2008. In addition the Adjudicating Authority also demanded the interest under Section 75 and imposed the penalty under Section 76, a penalty of ₹ 500/- under Section 75A and a penalty of ₹ 6,25,118/- under Section 78 of the Finance Act, 1994 were also imposed. Aggrieved by the said order, the appellant filed an appeal before the Commissioner (Appeals) who rejected the appeal vide the impugned order, therefore, the appellant is before me. 3. Shri S.S. Gupta, Ld. C.A. appearing on beh .....

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reliance on the following judgments: Commr. of S.T., Bangalore Vs. Motor World - 2012 (27) S.T.R. 225 (Kar.) Commr. of Cen. Ex., Chandigarh Vs. City Motors - 2010 (19) S.T.R. 486 (P & H) Commr. of Cen. Ex. Vs. Pannu Property Dealers, Ludhiana - 2011 (24) S.T.R. 173 (P & H) Commr. of Cen. Ex. Vs. First Flight Courier Ltd. - 2011 (22) S.T.R. 622 (P & H) Care And Cure (P) Ltd. Vs. Commr. of Cen. Ex., Chandigarh-II - 2015 (38) S.T.R. 225 (P & H) United Communication Udupi Vs. Comm. .....

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ordingly the benefit of reduction of 75% penalty was not extended to the appellant. He further submits that the issue whether the option of payment of service tax, interest and 25% penalty if not given in the adjudication order, the same can be provided at the subsequent stage, has been settled in the following judgments: M/s. Ram Singh Kanda & Sons Vs. Commr. of C.. Ex., Ludhiana - 2014-TIOL-2433-CESTAT-DEL Commr. of Cen. Ex. Vs. Bajaj Travels Limited - 2011 (21) S.T.R. 497 (P & H) Comm .....

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, Ld. Supdt. (A.R.) appearing on behalf of the Revenue reiterates the findings of the impugned order. He submits that as regard the penalties under Section 76 & 78, this Tribunal has passed a judgment in the case of Board Of Control For Cricket In India Vs. Commr. of S.T., Mumbai-I - 2015 (37) S.T.R. 785 (Tri.-Mum.), according to which the penalty under section 76 as well as 78 can be imposed simultaneously. As regard the issue whether the option to pay 25% penalty in terms of proviso to Sec .....

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6. As per the submissions of the Ld. C.A., the issues to be decides by me are as under:- (i) Once penalty under Sec 78 has been imposed whether penalty under Sec 76 can be imposed simultaneously. (ii) If the option of payment of 25% penalty in terms of proviso to Sec 78 has not been given in the adjudication order, whether it can be permitted at the later stage after 30 days of the adjudication order. On the first issue, I have gone through the various judgments of the various High Courts, where .....

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the minimum and less than the maximum provided for under the Act. It is in that context, in the light of the scheme of this provision that Sec 76 & 78 operate in a mutually exclusive area. For the same reason, the question of imposing penalty both under Sections 76 & 78 would not arise. The penalty is to be imposed either under Sec 78 or under Sec 76 and certainly not under both the provisions. In this connection, revenue has relied on the judgment of Division Bench of the Kerala High Co .....

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ransaction, or from the same act of the person concerned. But we are of the opinion that the incidents of imposition of penalty are distinct and separate and even if the offences are committed in the course of same transaction or arises out of the same act, the penalty is imposable for ingredients of both the offences. There can be a situation where even without suppressing value of taxable service, the personal liable to pay service tax fails to pay. Therefore, penalty can certainly be imposed .....

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e are not satisfied that an assessee who is guilty of suppression deserves such sympathy. As such, we are of opinion that the learned single Judge was not correct in directing the 1st appellant to modify the demand withdrawing penalty under Sec 76. Therefore, the judgment of the learned Single Judge, to the extent it directs the first appellant to modify Ext. P1 by withdrawing penalty levied under Sec 76, is liable to be set aside and we do so. The cumulative result of the above findings would b .....

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provided also that if the penalty is payable under this section, the provision of Sec 76 shall not be attracted. 23. While imposing penalty under Sec 76, the question of imposing penalty under Sec 78 also will not arise because Sec 76 applies to a case where the person has not either registered himself under the Act or having registered himself has not filed the return and not paid tax for the activity which he is carrying on. In such circumstances, the question of finding fault with the returns .....

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udicating authority. In appeal, the Commissioner reduced the penalty under Sec 78 of the Act and set aside the penalty under Sec 76 of the Act. The Revenue challenged the order passed by the Commissioner (Appeals) which has been dismissed. 5. A perusal of the impugned order shows that the penalty imposed under Sec 78 of the Act was sufficient to cover the default of service tax. Moreover, two penalties for the same default could not be imposed upon the respondent. Apart from the above, even the .....

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thority that if penalty under Sec 78 of the Act was imposed, penalty under Sec 76 of the Act could never be imposed may not be correct, the appellate authority was within its jurisdiction not to levy penalty under Sec 76 of the Act having regard to the fact that penalty equal to service tax had already been imposed under Sec 78 of the Act. This thinking was also in consonance with the amendment now incorporated though the said amendment may not have been applicable at the relevant time. Moreover .....

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ty under both the provisions could not be levied for the period in dispute. 5. We are unable to accept the submission. Sec 76 provides for penalty for failure to pay the amount while Sec 78 provides for penalty for suppressing the taxable value. Sec 78 is, thus, more comprehensive and provides for higher amount. Even if technically, the scope of Sections 76 and 78 is different, penalty under Sec 76 may not be justified if penalty had already been imposed under Sec 78. The matter was considered b .....

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enalty under Sec 78 of the Act was imposed, penalty under Sec 76 of the Act could never be imposed may not be correct, the appellate authority was within its jurisdiction not to levy penalty under Sec 76 of the Act having regard to the fact that penalty equal to service tax had already been imposed under Sec 78 of the Act. This thinking was also in consonance with the amendment now incorporated though the said amendment may not have been applicable at the relevant time. 6. In view of the above, .....

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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. United Communication Udupi Vs Commr o .....

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onstrued under Sec 78. To that extent the appeal succeeds. Commr. of C. Ex., Bhopal Vs. M/s. Hemkunt Petroleum Ltd. - 2015-TIOL-922-CESTAT-DEL 2. We have considered the contentions of Revenue. There is no dispute about the fact that the penalties under Sections 76 and 78 of the Act, became mutually exclusively only with effect from 16-5-2008 when proviso was added to Section 78 to the effect that if the penalty was payable under Sec 78 provisions of Sec 76 shall not apply. That having been said, .....

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that even if technically, scope of Sections 76 and 78 of the Act may be different, as submitted on behalf of the revenue, the fact that penalty has been levied under Sec 78 could be taken into account for levying or not levying penalty under Sec 76 of the Act. In such situation even if reasoning given by the appellate authority that if penalty under Sec 78 of the Act was imposed, penalty under Sec 76 of the Act could never be imposed may not be correct, the appellate authority was within its ju .....

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c 78 has been imposed even if technically penalties under both sections could be imposed and that the appellate authority was well within its jurisdiction not to levy penalty under Sec 76 having regard to the fact that penalty under Sec 78 has been imposed. In the wake of the said judgments of Punjab & Haryana High Court, we are of the view that the impugned order does not suffer from such a grave illegality/impropriety as to warrant our interference. Therefore, we dismiss the Revenue s appe .....

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