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Corporate News *  Service tax penalty can’t survive when assessee acted on dept.’s own view of non-taxability: Delhi High Court. *  GST section 74 extended limitation questionable when form 26AS mismatch was already known: Karnataka High Court grants interim relief. *  CGST demand prima facie impermissible after state GST settlement under section 128A: Bombay High Court. *  Supreme Court asks GSTAT to sympathetically consider delay as taxpayers pursued remedy before wrong forum. *  Supreme Court stays Tripura High Court ruling protecting genuine buyers from ITC denial over supplier’s GST default. *  Diary entries alone can’t prove clandestine removal of goods: CESTAT quashes excise penalty on steel trader. *  Customs could investigate preferential tariff claims even before sec. 28DA: Delhi High Court. *  Customs dept. relied on fake AI generated case laws: supreme court quashes Rs. 425.28 crore penalty. *  No GST exemption in affiliation and annual registration charges for admission or conduct Of examinations: GSTAT. *  Mere invoices, cheque payments insufficient to establish genuine movement of goods: GSTAT restores Rs. 43.44 lakh ITC demand. *  Consolidated GST show cause notice covering multiple financial years is not without jurisdiction: Delhi High Court. *  Construction of independent houses on separate plots not taxable as ‘Residential Complex’ without common facilities: CESTAT. *  GST penalty exceeding statutory maximum unsustainable; Allahabad High Court quashes ? 50,000/- penalty after taxpayer filed return and paid late fee. *  GST order against standard chartered bank passed without hearing set aside by Bombay High Court. *  Retracted statements can’t be relied upon without cross-examination: CESTAT quashes gold confiscation. *  Burden to prove misclassification lies on customs department: CESTAT. *  CESTAT quashes Rs. 98 lakh excise demand on clearance of used refractory brick scrap. *  Service tax demand on irrigation works quashed: Karnataka High Court rules sale of goods component not taxable as service. *  GSTAT restores tax and penalty for transporting iron scrap without E-way bill citing intent to evade tax. *  Madras High Court stays GST recovery from directors without opportunity to show cause under section 89. *  Madras high court stays GST recovery notice against directors; finds prima facie case on applicability of section 79(1)(c). *  Procedural lapses can’t justify harsh punishment without serious customs breach: CESTAT quashes customs broker licence revocation. *  Service tax payable on land leasing and sports complex charges: CESTAT. *  Settled customs dispute can’t be reopened through Article 226 challenge to interest liability: Delhi High Court. *  Mere facilitation of customs clearance can’t establish knowledge of smuggling: Madras High Court. *  GST registration cancellation stayed: Allahabad High Court questions 99% ITC utilisation cap under rule 86B. *  Composition scheme lapses automatically on crossing Rs. 1.5 crore turnover: GSTAT. *  Gujarat High Court quashes GST cancellation orders after officer relied on non-existent AI-generated case laws. *  Importers liable for customs duty benefits availed through manipulated scrips: Delhi High Court. *  Procedural E-way bill lapse alone can’t justify penalty where genuine transaction and absence of tax evasion are established: GSTAT.
Subject News *  Documentary evidence dominates probe, further custody unwarranted: mumbai court grants bail in Rs. 22.44 crore customs duty evasion case. *  Business premises can’t remain sealed for non-participation in GST search: Allahabad High Court. *  GST pre-deposit must be refunded proportionately when taxpayer partly succeeds in appeal: Bombay High Court. *  Supreme Court grants 30 days to file GST appeal; keeps pre-deposit issue open due to deposit in parallel CGST proceedings. *  GST demand can’t exceed amount proposed in SCN: Allahabad High Court quashes Rs. 20.47 Crore order. *  Hundreds-of-crores GST demand and heavy 10% pre-deposit no ground to bypass statutory appeal: Punjab & Haryana High Court. *  Delhi High Court refuses to entertain challenge to gold confiscation due to statutory appeal remedy and unexplained delay. *  Procedural error in customs broker licence inquiry can be rectified through remand: Delhi High Court. *  GSTR-2A mismatch alone can’t justify ITC denial without invoice-wise verification; personal hearing mandatory: GSTAT. *  GST order passed without uploading personal hearing notices violates sec. 75(4): Allahabad High Court. *  TAX EVASION - Sec. 74 GST SCN quashed for not spelling out fraud, wilful misstatement or suppression: Allahabad High Court. *  STPI’s SOFTEX certification and NoC charges taxable as business support services: CESTAT. *  Suspicion can’t replace proof: CESTAT quashes penalty in alleged gold-smuggling operation. *   Limitation runs from communication of order: Madras High Court upholds rejection of delayed GST Appeals. *  Rajasthan High Court quashes GST demand over unsigned show cause notice. *  ITC recovery upheld where supplier failed to deposit GST: Rajasthan High Court. *  Customs commissioner’s empowered to make port trust liable for duty on pilfered goods: Supreme Court. *  Rectification proceedings can’t be used to challenge an uncontested GST assessment through a writ petition: Andhra Pradesh HC. *  GST proceedings against deceased proprietor unsustainable without notice to legal heir: GSTAT. *  Mere availment of ineligible self-assessed ITC doesn’t amount to suppression without evidence of fraud or wilful misstatement: GSTAT. *  Disposal of mining overburden by entity authorised by mining lease holder constitutes taxable service: CESTAT. *  Toll plaza data not mandatory for ITC refund: GSTAT. *  Disputed GST fraud allegations require investigation: Punjab and Haryana High Court makes interim bail absolute in alleged fraud and GST fraud case. *  Non-manufacturer contractor liable to deposit excess excise duty collected from buyer: CESTAT. *  GST order can’t reject taxpayer’s reply as “not satisfactory” without reasons: Madhya Pradesh High Court. *  Uncorroborated statements can’t establish alleged diversion of duty-free goods: CESTAT. *  Erection services were not liable to service tax prior to 10th september 2004: CESTAT. *  Sec. 74 GST notice must spell out statutory ingredients for invoking extended tax demand proceedings: Allahabad High Court. *  No jurisdictional bar under section 6(2)(b) in parallel CGST SGST proceedings: Delhi High Court refuses to bypass GST appeal remedy. *  Madras High Court remits GST demand for fresh adjudication after taxpayer claims it was unaware of SCN following business closure.  

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PJ/Case Laws/2010-11/1169

Quantum of Penalty u/s 76 - whether can be reduced below prescribed limits?

Case: - Commissioner of Central Excise & Customs V/S Port Officer
 
Citation: - 2010 (257) E.L.T. 37 (Guj.)
 
Issue:- Whether quantum of penalty levied u/s 76 of Finance Act, 1994 can be reduced below the prescribed Limits?
 
Brief Facts:- The Adjudicating Authority confirmed the demand towards short paid service tax and imposed penalty of Rs. 20, 000/- under Section 76 and Rs. 95, 000/- under Section 78 on the Respondent-assessee. In appeal, the Commissioner (Appeals) deleted the entire penalty u/s 76 on the footing that penalty had been also levied u/s 78 of the Act and thereafter also reduced the penalty imposed under Section 78 to Rs. 94, 000/-.
 
In further appeal, the Tribunal remanded the matter back to the Adjudicating Authority. In second round of litigation, the Adjudicating Authority imposed penalty equal to the amount of service demanded u/s 78 as well as u/s 76.
 
In appeal, the Commissioner (Appeal) held that in the first round the penalty imposed on the assessee under Section 76 was only Rs. 20, 000 which was increased to equal amount of service tax in the second round of litigation without existence of any additional ground. It was noted that appellant had deposited Rs. 21, 962/- for delay payment of differential service tax. It was also noted that the delay in payment of service tax was on account of change in the rate w.e.f. 10.09.2004. It was held that this was not a case wherein assessee had failed to pay their service tax on monthly/quarterly basis and there was justification for delay in payment of service tax. The Commissioner (Appeal) took lenient view and reduced the penalty under Section 76 to Rs. 10, 000/-. Penalty under Section 78 was set aside in exercise of power under Section 80.
 
In appeal, the Tribunal held that in view of judgments relied upon by the assessee, penalty can be reduced in exercise of power u/s 80 and rejected the appeal of Revenue.
 
Hence, Revenue is before the High Court.
 
Petitioner’s Contention:- Petitioner-Revenue contended that the Penalty under section 80 of the Act read with section 76 does not allow reducing the amount of penalty below the statutory minimum and maximum limit prescribed under the Act. Section 80 refers only to the waiving of the service tax if the assessee provides a reasonable cause for the failure.
 
Respondent’s Contentions:- Respondent submitted that under Section 76 of the Finance Act, 1994 (the Act) the authority is empowered to levy penalty but has discretion in so far as the quantum of penalty is concerned. When read with Section 80 of the Act the said discretion empowers the authority to reduce the penalty to an amount below the limit stipulated in Section 76 of the said Act because once there is a discretion to delete the entire penalty such discretion can also extend to reducing the penalty partially, if the facts so warrant.
 
Reliance was placed on various judgments given in Union of India v. Dial and Travels {[2007] 7 STT 372 (Raj.)}; Commissioner of Central Excise & Customs, Nasik v. D.R. Gade, [2008 (9) S.T.R. 348 (Bom.)]; Commissioner of C. Ex. & Customs, Nashik v. Vinay Bele & Associates, [2008 (9)  S.T.R. 350 (Bom.)]; Commissioner of Service Tax, Mumbai v. S.R. Enterprises, [2008 (9) S.T.R. 123 (Bom.)]; Commissioner of Central Excise & Service Tax, Jalandhar v. R.K. Associates, [2009 (16) S.T.R. 135 (P & H)]; Commissioner of Central Excise Commissionerate, Jalandhar v. Darmania Telecom, [2009 (14) S.T.R. 145 (P & H)]; Commissioner of Central Excise, Mangalore v. Vishwanatha Karkera, [2009 (14) S.T.R. 9 (Kar.)]; Commissioner of Central Excise v. Madhuri Travels, [2009 (15) S.T.R. 241 (Bom.)]; Commissioner of Central Excise, Jalandhar v. Batala Citi Cable (P.) Ltd, [2009 (16) S.T.R. 19 (P & H)] and Commissioner of Central Excise, Jalandhar v Steel Craft (India), [2010 (17) S.T.R. 8 (P & H)].
 
It was further submitted that the Finance Act, 1994, which imposes service tax, is an All India Statute and this High Court should normally not deviate from the view expressed by the other High Courts in the country. Lastly, it was submitted that if the Court was of the opinion that the impugned order of Tribunal was a non-speaking order, the matter could be restored to file of the Tribunal, leaving it open to the assessee to plead applicability of Section 80 of the Act.
 
Reasoning of Judgment:- The High Court perused the order of the Tribunal and found that in entire order one does not find as to how and in what manner either Section 76 or Section 80 of the Act vests a discretion in the authority to levy penalty below the minimum prescribed.
 
The High Court perused the provisions of the Sections 76 and 80 held that a person who is liable to pay service tax and has failed to pay such tax is liable to pay penalty for such failure. The Quantum of penalty has been specified in the provisions of the Act by laying minimum and maximum limits for the same.
 
It was held that Section 76 clearly doesn’t give any discretion to the authority to reduce penalty below the minimum prescribed amount. In respect of Section 80, it overrides the provisions of Sections 76, 77, 78 and 79 of the Act. Under this section the onus of establishing a reasonable cause lies in the hands of the assessee and if is established then there will be no penalty imposable. The Provision doesn’t say that a reduced amount of penalty is imposable. In this case however, the reason for which section 80 has been applied has not been given by the assessee.
 
Hence, even if the provision of Section 76 is read with Section 80 of the Act it is not possible to impose penalty below the Minimum limit prescribed. Hence, impugned order set aside. Matter remanded to the Tribunal.
 
Decision:- Appeal disposed off accordingly.  

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