TMI Blog2018 (5) TMI 1528X X X X Extracts X X X X X X X X Extracts X X X X ..... hat no penalty is imposable under section 76, when a penalty is imposed under section 78 - As it is now settled law, penalty cannot be imposed under section 76 of Finance Act, 1944 if it is imposed under section 78. The Order-in-Appeal is upheld with the modification that the service tax liability with interest and penalty under sections 77 & 78 is also upheld while the penalty under section 76 is set aside - appeal disposed off. - Appeal No. ST/659/2009 - Final Order No. A/30571/2018 - Dated:- 9-5-2018 - Hon ble Mr. M. V. Ravindran, Member ( Judicial ) And Hon ble Mr. P. V. Subba Rao, Member ( Technical ) Shri D.Vishwanathan, Consultant for the Appellant Shri M. Chandra Bose, Addl. Commissioner /AR for the Respondent O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... credit of the service tax paid in terms of CENVAT CREDIT rules which may be allowed while arriving at service tax liability. The assessee filed an appeal before CESTAT, Southern Zonal Bench, Bangalore who, vide Miscellaneous Order No.52/2011, and Final Order o. 79/2011, dated 24.01.2011 dismissed the appeal for noncompliance of the order passed in the stay order. The appellants paid entire amount of duty alongwith interest and filed for Restoration of Appeal dated 28.02.2015 before CESTAT, Hyderabad, which was dismissed vide Miscellaneous Order No. M/30142/2016, dated 02.08.2016. Assessee filed Writ PetitionNo. 35899 of 2016, datd 27.10.2016 before Hon ble High Court of Andhra Pradesh at Hyderabad. The Hon ble High Court disposed the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y payable under section 76. Although this proviso was introduced w.e.f. 10.05.2008, in the following judgments this was held to be applicable for cases to the period prior to this date also. i) Industrial Security Protection Services [2016(1)(TMI) (209) ii) RAVAL TRADING COMPANY [2016(42)S.T.R. 210 (Guj.)] iii) CCE vs. FIRST FLIGHT COURIER LTD [2011(22)STR 722 (P H)] 6. The prayer by the appellant is that in view of the above, the penalty imposed under section 76 of Finance Act, 1994 may kindly be set aside as the penalty has already been imposed under section 78 of the Act. 7. Ld. DR reiterated the findings in the Order-in-Original and Order-in- Appeal and pleaded that the appeal may be dismissed. 8. We find that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmit ST-3 returns. 11. Regarding the simultaneous imposition of penalties under section 76 78 of the Finance Act, 1944 (for the period September 2002 to July 2006), we find that the proviso of sub section 2 of Section 78 was introduced on 10.05.2008 stating that no penalty is imposable under section 76, when a penalty is imposed under section 78. The question whether this also applies to the period prior to this amendment, is no longer res integra, it was decided by Hon ble High Court of Gujarat in the case of Raval Trading Company vs. CST [2016(42)S.T.R. 210 (Guj.)] and paras No. 10, 11 12 of the judgment are reproduced below: (10). The tenor, background and the purpose for which the penalty could be imposed under Section 78 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 of the Finance Act, 1994, would cover only the cases of non-payment of service tax which are not related to fraud, collusion, wilful misstatement, suppression of facts or contravention of any of the provisions of the said Chapter or the rules made thereunder with the intent to evade payment of service tax since legislature had already provided for penalty in Section 78 in such situations. Thus further proviso to Section 78 made it explicit which was till then implicit. (12). Section 76 of the Finance Act, 1994, as is now amended with effect from 14- 5-2015 gives further credence to this argument. Section 76(1) as it stands after the said amendment provides that where service tax was not levied or not paid or having been short-levied ..... X X X X Extracts X X X X X X X X Extracts X X X X
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