2015 (10) TMI 2292 - AT - Service Tax

Tribunal rejects Revenue's appeal on simultaneous penalties, allows remand for cum-duty benefits

M/s. 3 Guys Versus Commissioner of Central Excise- Haldia

The Tribunal rejected the Revenue's appeal, holding that penalties under Sections 76 & 78 of the Finance Act 1994 cannot be imposed simultaneously ... Penalty under Section 76 and 78 of Finance Act, 1994 – Simultaneous imposition of penalties under Sections 76 & 78 cannot be made applicable to SCN issued after 16/05/2008 when amended provisions of Sec 78 were in force – No intention to evade tax and by invoking Section 80, penalties should be set aside due to financial hardships – Revenue contends that simultaneous penalties are imposable for period prior to 16/05/2008 when Sec 78 was amended – Tax was not paid till detected by department thus acts of appellant were clearly mala-fide. Held That:- Simultaneous penalty under Sec 76 is not imposable upon the appellant when SCN was issued after 16/05/2008 when amended provisions of Sec 78 were existing – Decision made in case of CST Bangalore Vs The Peoples Choice [2014 (4) TMI 291 - KARNATAKA HIGH COURT] followed – Decided in favour of appellant. No intimation was filed by appellant to make clear his intentions and have no reasonable cause to waive penalty under Section 78 – There was suppression of material facts with intention to evade payment of service tax as it was already collected from service recipients but was not paid to department - Extending 25% reduced penalty option on reworked out amount under Sec-78 is required to be decided by original authority – Matter remanded back. Issues:1. Whether Section 76 & penalties can be imposed upon the appellant simultaneously under a show cause notice issued after an amendment to Sec 78 of the Finance Act 1994.2. Whether penalty under Sec 78 of the Finance Act 1994 is attracted against the appellant in the present proceedings.Analysis:Issue 1:The appellant argued that after the amendment to Sec 78 of the Finance Act 1994, penalties under Sections 76 & 78 cannot be imposed simultaneously. The appellant relied on a Karnataka High Court order to support this argument. The Revenue contended that simultaneous penalties were imposable based on previous case laws. The Tribunal found that the case laws cited by both parties had different facts. The Tribunal referred to the Karnataka High Court's decision, which concluded that penalties cannot be imposed simultaneously under the amended provisions. Therefore, the Revenue's appeal was rejected.Issue 2:Regarding the imposition of Sec 78 penalty, the appellant claimed that the Service Tax payable was accurately reflected in the returns filed with the department, indicating no intention to evade payment. The appellant also argued for the waiver of penalties under Sec 80 due to financial hardships. However, the Tribunal noted discrepancies in the appellant's returns where some months showed no duty paying challan numbers. This lack of clarity led to the conclusion that there was a suppression of material facts with an intention to evade tax payment. The Tribunal found that the appellant had collected Service Tax but failed to remit it to the department, negating any claim of financial hardship. The case was remanded to the adjudicating authority to consider cum-duty benefits and reduced penalty options.In conclusion, the appellant's appeal was allowed for remand as per the observations made, while the Revenue's appeal was dismissed.