2014 (4) TMI 362

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....e not goods but service and therefore, on supply of such SIM cards/recharge coupons, Service Tax is leviable. Accordingly, the demand for Service Tax was upheld for the normal period of limitation along with interest thereon. It was further held that penalty under Section 76 of the Finance Act, 1994 would also apply on such recomputed demand and penalty under Section 78 of the said Finance Act, 1994 was set aside. 2. The learned Counsel for the appellant submits that there are errors apparent on the facts of records in the impugned order. The first is confirmation of penalty under Section 76 of the Finance Act, 1994. While coming to the conclusion that SIM cards/recharge coupons are not goods but service, the Tribunal had relied on the d....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....e, no rectification of any mistake is called for. 4. We have carefully considered the submission made by both sides. 4.1 In our order dated 7.6.2013 in para 5.11, we had held as follows:-       "5.11 As regards penalties, penalty under section 76 is for the default in payment of tax by the due date and no mens rea is required and the penalty is based on the period of delay. Therefore, this penalty is sustainable in law. As regards the penalty imposed under section 78, we have already held that there is no suppression on the part of the appellant and therefore, penalty under section 78 is not imposable and accordingly we set aside the same."       In the decision of the Hon'bl....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... of the value of taxable service. Of course, these two offences may arise in the course of the same transaction, or from the same act of the person concerned. But we are of opinion that the incidents of imposition of penalty are distinct and separate and even if the offences are committed in the course of same transaction or arises out of the same act, the penalty is imposable for ingredients of both the offences." 4.2 Similarly, the Hon'ble Apex Court in the case of Chairman, SEBI vs. Shriram Mutual Fund and Anr held that "penalty is attracted as soon as contravention of the statutory obligations is contemplated by the Act and the Regulations is established and, hence, the intention of the parties committing such violation becomes i....