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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 law-2012/13-1568

Whether simultaneous imposition of penalties under section 76 and 78 is proper?

Case:-  COMMISSIONER OF CENTRAL EXCISE, MEERUT VERSUS  MERINO INDUSTRIES LTD.

Citation:-2013 (30) S.T.R. 413 (Tri.- Del.)

Issue:- Whether simultaneous imposition of penalties under section 76 and 78 is proper?

Brief Facts:-The respondents are manufacturers of excisable goods which they export. They have been using the service of foreign commission agent for selling their product. During investigation by Revenue officers, it was noticed that they had not paid service tax on the amounts paid to their foreign agents. When this issue was pointed out to them they paid service tax along with interest before issue of Show Cause Notice. However, Revenue was of the view that they should have paid penalty also. Accordingly, proceedings were initiated and service tax of Rs. 3,85,323/- was confirmed and penalties of Rs. 2,42,554/- each were imposed under Section 76 and 78 of the Finance Act, 1994. In appeal filed before Commissioner (Appeal), penalty under Section 76 was set aside for the reason that simultaneous penalties under Section 76 and Section 78 were not warranted. Aggrieved by the order of Commissioner (Appeals), Revenue has filed this appeal for restoration of penalty under section 76.

Appellant’s Contention:-The Appellant submits that Section 76 and 78 provides penalties for different reasons and the Hon’ble Kerala High Court in the case of Assistant Commissioner of Central Excise v. Krishna Poduval -2006 (1) S.T.R.185 (Ker.) has held that such separate penalties can be imposed and therefore ld. AR pleads that the Commissioner (Appeals) erred in dropping the penalty imposed under Section 76.

Respondent’s Contention:-The Respondent submits that the Punjab & Haryana High Court in the case of CCE v. City Motors- 2010 (19) S.T.R. 486 (P & H) has held that once penalty under Section 78 is imposed there is no justification for imposing separate penalty under Section 76. The Counsel also quoted a few decisions of the Tribunal holding the same view. He also point out that from 10-5-2008, Section 78 has been amended to the effect that penalties under both sections should not be imposed simultaneously.

Reasoning of Judgment:-  We have considered the submissions from both the parties and perused the record, we find that the demand is for the period 2004-05 to 2007-08. For the period prior to 18-4-2006 there has been decision of the Bombay High Court in the case of Indian National Shinpowner Assosiation v. UOL -2009 (13) S.T.R. 235 to the effect that service tax need not paid by recipient of service for services provided by persons located abroad. In this case the respondent has voluntarily paid the tax when the omission was pointed out to them without contesting the issue and he has also paid the penalty under Section 78. In these circumstances, Tribunal finds it proper to follow the decision of order of Punjab & Haryana High Court which is the jurisdictional High Court. So the Tribunal uphold the order of Commissioner (Appeals), thereby rejecting the appeal filed by the Revenue.

Decision:- Appeal filed by revenue is rejected.

Comment:-The crux of this case is simultaneous penalty under section 76 & 78 is neither warranted not justifiable and so the appeal filed by the Revenue was bound to be rejected. Moreover, there has been amendment in section 78 that no penalty is imposable under section 76 if penalty has been imposed under section 78 and many high courts have even held that such amendment has retrospective application and is clarificatory in nature.

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