TMI Blog2016 (2) TMI 72X X X X Extracts X X X X X X X X Extracts X X X X ..... l Order Nos. A/75662-75663/2015 - Dated:- 20-11-2015 - H K Thakur, Member (T) For the Appellant : Shri S Banerjee, Adv For the Respondent : Shri K Choudhary, Supdt (AR) ORDER Per H K Thakur These appeals have been filed by the appellants against OIA No. 160/BOL/2012 dt 01/06/2012 passed by Commissioner (Appeals) Kolkata-IV and order-in-Revision No. 76/Commr./55-Revision/BOL/09 dt 04/09/09 passed by Commissioner of Central Excise Bolpur. Both the proceedings got initiated as a result of OIO No. 05/AC/ST/T.E/DGP-ii/2008-09 dt 28/08/2008 under which adjudicating authority confirmed a demand of Service tax amounting to ₹ 400,329/- also imposed equivalent penalty under Sec 78 of the Finance Act 1994 but did not give option of 25% reduced penalty to the appellant. Also no penalty was imposed by Adjudicating authority under Sec 76 of the Finance Act 1994 for which order-in-Revision dt 04/09/2009 was passed by the Commissioner. 2 Sh. S. Banergee (Advocate) appearing on behalf of the appellant argued that passing of order-in-Revision dt 4/9/2009 by the Jurisdictional Commissioner was wrong when an appeal on the same issue was pending before Commissioner (A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase law relied upon by the Revenue is with respect to Rules- 96 2P(3) 173 Q(1) of the erstwhile Central Excise Rules 1944. The issues for consideration before Gujarat high court were the following:- (i) Whether once the Appellate Tribunal rejects the assessee's challenge to the penalty imposed by the adjudicating authority. Revenue can file appeal before the Commissioner seeking enhancement of the penalty? (ii) Whether once the Commissioner rejects assessee's appeal against penalty, the Revenue's appeal for enhancement would be barred since the order of adjudicating authority would have merged in the order of the Commissioner rejecting appeal of the assessee? 5. Hon'ble Gujarat High Court in the above case law passed following observations in Para- 8 8. In view of the above and for the reasons stated above, the questions raised in the present appeals are answered in favour of the Revenue and against the assessee and it is held that in the facts and circumstances of the case narrated hereinabove that on dismissal of the appeal preferred by the assessee raising the issue with respect to the liability of the assessee for penal action, the appeal p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount in accordance with the provisions of Section 75, a penalty which shall not be less than two hundred rupees for every day during which such failure continues or at the rate of two per cent 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. Provided that the total amount of the penalty payable in terms of this section shall not exceed the service tax payable. 78. Penalty for suppressing value of taxable service: [Where any service tax has not been levied or paid or has been short-levied or short-paid or erroneously refunded, by reason of - (a) fraud; or (b) collusion; or (c) Wilful mis-statement; or (d) suppression of facts, or (e) contravention of any of the provisions of this Chapter or of the rules made thereunder with intent to evade payment of service tax. the person, liable, to pay such service tax or erroneous refund, as determined under sub-section (2) of Section 73, shall also be liable to pay a penalty, in addition to such service tax and interest thereon, if any, payable by him, which shall not be less than, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied or paid or where it has been short-levied or short-paid or where the service tax has been erroneously refunded by reasons of circumstances stipulated therein which are fraud or collusion or wilful mis-statement or suppression of facts or contravention of any of the provisions of this Chapter or of the rules made thereunder. Such fraud, collusion etc. has to be with intent to evade payment of service tax Thus, provision of Section 78 are attracted when not only a case of fraud, collusion etc is made out but it is also established that the defaulter did not pay or short-paid or got refund of the tax paid with intent to evade the payment of service tax. In such a case, the person who is liable to pay such service tax or is erroneously refunded the tax can be levied the penalty which shall not be less than the amount of service tax evaded/refunded subject to maximum of the twice the said amount of the non-levy/non-payment/short-levied/short-payment/erroneous refund. However, in case the service tax as determined under Section 72(2) of the Act is paid along with the interest payable under Section 75, within 30 days from the date of communication of the order, this penalty is to be r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he amendment now incorporated though the said amendment may not have been applicable at the relevant time. Moreover, the amount involved is ₹ 51,026/- only. The Court, thus, chose not to interfere with the aforesaid discretion of the Tribunal. 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. 18. We, thus, answer question no. 3 against the assessee and in favour of the Revenue holding that the aforesaid amendment to Section 78 by Finance Act. 2008 shall operate prospectively. 7.1. In view of the above respectfully following the above judgment of Delhi high court it is held that in the present proceedings simultaneous imposition of penalties under Sec 76 78 was permissible as show cause notice in the present case was issued before 16/5/2008 when Sec 78 of the Finance Act 1994 was amended. 8. So for a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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