Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *   CBIC issues draft rules for Customs valuation *  Top Headlines: Threshold for Benami deals, green bond investors, and more *  Govt aims 1-hour clearance for goods at all ports *  Exporters Allowed To Use RoDTEP, RoSCTL Scrips To Pay Customs Duty, Transfer Them; Rules Amended *  Millions of labourers to be affected by brick producers’ strike over hike in GST, coal rates *  Inauguration of ‘kendriya GST parisar’ *  Transporter can seek Release of Conveyance alone, not Goods under GST Act: Madras HC *  GST: Quoting of DIN Mandatory for Responding to Notice, Govt Modifies Portal *  Firms can soon file claims for GST credits of ?400 cr *  CBIC issues modalities for filing transitional credit under GST. *  Mumbai: Man creates 36 fake GST firms, arrested for input tax credit fraud of Rs 23 cr *  Report to restructure Commerce Ministry under study; idea is to set up trade promotion body: Goyal *  Firms can soon file claims for GST credits of ?400 cr *  Gambling Alert! Govt May Levy Up To 28% GST; UP, Bengal Back Move *  EPFO backs raising retirement age to ease pressure on pension funds *  India Moving Up Power Scale, Set to Become Third Largest Economy By 2030 *  Airfares Get Expensive: What Changes for Flyers From Today? *  IRCTC Latest News: Passengers to Pay More For Cancelling Confirmed Rail Tickets Soon. *  IBC prevails over Customs Act, says Supreme Court. *  As GST enters sixth year, a time for evaluation and reassessment *  There’s GST on daily essentials as Centre needs money to buy MLAs: Arvind Kejriwal *  Now, GST on cancellation of confirmed train tickets, hotel bookings *  GST kitty for top States could rise 20% in FY23, says Crisil *  French customs officials seize another cargo vessel over Russia sanctions *  TradeLens builds on Asia momentum with Pakistan Customs deal *  Hike tax on tobacco, reduce affordability & increase revenue: Civil society organizations to GST council *  Bihar: ?10 crore tax evasion on tobacco products detected in raids *  Centre failed on GST, COVID; would it be anti-national? Rajan on Infosys row *  Service Tax not Chargeable on Income Tax TDS portion paid by recipient: CESTAT grants relief to TVS *  Foreign portfolio investors make net investment of Rs 7575cr in Sep so far
Subject News *  Run-up to Budget: Monetary threshold for GST offences may rise to Rs 25 cr *   GST (Tax) E-invoice Must For Businesses With Over Rs 5 Crore Annual Turnover *   Both Central GST and excise duty can be imposed on tobacco, rules Karnataka high court *   CBIC Issues Clarification On Extended Timelines For GST Compliance *   CBIC Issues Clarification On Extended Timelines For GST Compliance *  Budget 2023- 9.6 crore gas connections *  GST: Tamil Nadu Issues Instructions for Assessment and Adjudication Proceedings *  GST: CBIC Extends Last Date for filing of ITC *  GST collection in September surpasses Rs 1.4 lakh crore for straight seventh time *  Dollar smuggling case: Customs chargesheet names M Sivasankar as key conspirator. *  Hike in GST rates fuels inflation *  Assam: CBI arrests GST commissioner in Guwahati *  GST fraud worth ?824cr by 15 insurance Cos detected *  India proposes 15% customs duties on 22 items imported from UK *  Decriminalising certain offences under GST on cards *  Surge in GST collections more due to higher inflation: India Ratings *  MNRE Notifies BCD and Hike in GST Rates as ‘Change in Law’ Events But With a Condition | Mercom India *   Solar projects awarded before customs duty change allowed cost pass-through *  Rajasthan High Court Dismisses Writ Petitions Challenging Levy Of GST On Royalty *   GST revenue in September likely at Rs 1.45 lakh crore *  Govt working on decriminalising certain offences under GST, lower compounding charge *  Building an institution like GST Council takes time, trashing is easy: Sitharaman *  GST collections in Sept may touch ?1.5 lakh crore *  KTR asks Centre to withdraw GST on handlooms *  After Gameskraft, More Online Gaming Startups To Receive GST Tax Claims *  Madras HC: AAR Application Filed Under VAT Does Not Survive After GST Enactment *  Threshold for criminal offences under GST law may be raised *  Bengaluru: Gaming company faces biggest GST notice of Rs 21,000 crore *  CBIC clarifies Classification of Cranes for GST, Customs Duty *  Customs seize gold hidden in bicycle in Kerala airport  

Comments

Print   |    |  Comment

PJ/Case Laws/2012-13/1422

Penalty under Section 76 &78 cannot be imposed simultaneously.

Case:- JIVANT ENTERPRISE VERSUS COMMISSIONER OF SERVICE TAX, AHMEDABAD

Citation:- 2012 (28) S.T.R. 582 (Tri.- Ahmd)

Issue:- Penalty under Section 76 &78 cannot be imposed simultaneously.  

Brief Facts:-In this appeal, the appellant is charged with non-payment of service tax liability under the category of Management, Maintenance and Repair Services, for the material period 1-4-2004 to 31-3-2007. The demand is raised on the basis of inspection of document which were called from the assessee. The appellant before issuance of show-cause notice has paid the entire amount of service tax liability, interest and 25% of the penalty imposed under Section 78 of the Finance Act, 1994 within 30 days of issuance of the adjudication order. Assessee was aggrieved by the adjudication order for imposition of penalty under section 76 and hence took the matter in appeal. The first appellate authority also did not agree with the contentions raised by the appellant for imposition of penalty under Section 76 and confirmed the order the adjudicating authority and hence, this appeal.

Appellant’s Contentions:-The learned Chartered Accountant’s entire submission is that the provisions of Section 78 was amended from 10-5-2008, wherein an amendment is brought in indicating that, where penalties payable under Section 78, no penalty under the provision of Section 76 shall be attracted. It is  his submission that the show cause notice to the appellant was issued on 18-6-2008 i.e. almost after a month of the amendment carried out to Section 78 and by virtue of this amendment, if the show cause notice is issued post amendment and as per the statue, no penalty is payable under Section 76. The appellant would rely upon the judgment of the Hon’ble High Court of Karnataka in the case of CCE v. Motor World – 2012- TIOL-418-HC-KAR-S.T. =2012 (27) S.T.R.  (Kar.). And also in the case of First Flight Courier Limited – 2012 (22) S.T.R. 622 (P & H) and again in the case of United Communication Udupi – 2011-TIOL-802-HC-KAR-S.T. = 20121 (281) E.L.T. 168 (Kar.), for this proposition. It is also his submission that the Tribunal decision in the case of West Minister International P. Limited – (2007)11 STT 157 (New Delhi-CEGAT) = 2006 (2) S.T.R. 539 (Tri.-Del.) = 2002 (140) E.L.T. 244 (Tri.-Del.) would indicate that penalty can be imposed only under the provisions, which are in existence at the time of issuance of show cause notice.

Respondent’s Contentions:-On the Other hand the learned SDR would submit that the judgement of the Hon’ble Court of Delhi in the case of Bajaj Travels Limited [2012 (25) S.T.R. 417 (Del.)] would be applicable wherein their Lordships have held that, simultaneous penalties can be imposed under Sections 76 & 78 of the Finance Act,1994. He would specially draw my attention to paragraphs 16 & 17 of the said judgement in the case of Bajaj Travels Limited.

Reasoning of Judgment:-The Tribunal heard both the Parties and considered  the submissions made by both sides and perused the records. On that factual matrix, they find that the amendment carried out to Section 78 on 10-5-2008, specially talks about non imposition of penalty under Section 76 if a penalty under Section 78 is imposed. The Hon’ble High Court of Karnataka in the case of Motor World (supra) has specifically considered the judgment of the Kerala High Court in the case of Krishna Poduval [2006 (1) S.T.R. 185 (Ker.)]. He said that when once the ingredients of Section 78 are established and there is no reasonable cause for failure, section 80 is not attracted. For the same reason the question of imposing penalty both under Section 76 and 78 would not arise. The penalty is to be imposed either under Section 76 or 78 and certainly not under both the provisions. The abovesaid ratio squarely covers the issue in favour of the assessee in this case. The facts of the current case before them are totally different in as much as, the show cause notice is issued to the appellants on 18-6-2008 and whereas the amendment to Section 78 was carried out on 10-05-2008.According to their view, the judgment of The Hon’ble High Court of Karnataka in the case of Motor World (supra) would be applicable in this case. Respectfully following the law as laid down by the Hon’ble High Court, Tribunal finds that the impugned order is not sustainable and is liable to be set aside.

Decision:-Appeal Allowed.

Comment:-The essence of this case is that imposition of simultaneous penalty under section 76 & 78 is neither legal nor warranted in view of amendment made in the section 78. Moreover, some High Courts have also held that penalty under both the sections is not imposable even prior to the said amendment as it is clarificatory in nature. 

Department News


Query

 
PRADEEP JAIN, F.C.A.

Head Office : -

Address :
"SUGYAN", H - 29, SHASTRI NAGAR, JODHPUR (RAJ.) - 342003

Phone No. :
0291 - 2439496, 0291 - 3258496

Mobile No. :
09314722236

Fax No. :0291 - 2439496


Branch Office : -

Address:
1008, 10th FLOOR, SUKH SAGAR COMPLEX,
NEAR FORTUNE LANDMARK HOTEL, USMANPURA,
ASHRAM ROAD, AHMEDABAD-380013

Phone No. :
079-32999496, 27560043

Mobile No. :
093777659496, 09377649496

E-mail :pradeep@capradeepjain.com