TaxTMI 
TaxTMI 
2016 (2) TMI 72
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....alf of the appellant argued that passing of order-in-Revision dt 4/9/2009 by the Jurisdictional Commissioner was wrong when an appeal on the same issue was pending before Commissioner (A) as per Sec 84 (4) of the Finance Act 1994 pevailing at the relevant time. He relied upon the case law of CCE Vs Shiva Builders [2011 (22) STR 513 (P&H)]. It was also his case that no option of 25% reduced penalty was extended by the Adjudicating authority. 3 Sh. K. Choudhari Supdt (AR) appearing an behalf of the Revenue argued that order-in-Revision has been correctly passed by the Commissioner as the issue of imposition of penalty under Sec 76 of the Finance Act 1994 was not the subject matter before the first appellate Authority in the appeal filed by the appellant. It was his case that doctrine of merger will not apply in this case as per the case law of J.R Steels Industries Vs CESTAT [2014 (306) ELT 302 (Guj)]. On Simultaneous imposition of penalties under Sec 76 & 78 of the Finance Act 1994 at the relevant time Learned AR relied upon the case law of Bajaj Travels Ltd Vs CS1 [2012 (25) STR 417 (Del)]. 4. Heard both sides & perused the case records. Appellant M/s. Teknomac Engineers were pro....
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....arrated hereinabove that on dismissal of the appeal preferred by the assessee raising the issue with respect to the liability of the assessee for penal action, the appeal preferred by the Revenue for enhancement of the penalty against the order passed by the adjudicating authority would not be barred on the ground of merger and consequently would be maintainable, meaning thereby the Revenue cannot be said to be debarred from challenging the order passed by the adjudicating authority with respect to the quantum of penalty which was neither the subject matter of appeal before the Appellate Commissioner nor there was any Its between the parties in the said appeal preferred by the assessee nor the Appellate Commissioner had any occasion to consider the issue with respect to quantum of appeal." 6. In the present proceedings also the issue of imposition of Sec 76 penalty under the Finance Act 1994 was not pending before Commissioner (A) and accordingly provisions, of Sec 84 (4) of the Finance Act 1994 during the relevant period will not be applicable to the facts & circustames of the present proceedings. 7. So for as simultaneous imposition of penalties under Sec 76 & 78 of the Finance....
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....iable to pay a penalty, in addition to such service tax and interest thereon, if any, payable by him, which shall not be less than, but which shall not exceed twice, the amount of service tax so not levied or paid or short-levied or short-paid or erroneously refunded] [Provided that where such service tax as determined under sub-section (2) of Section 73. and the interest payable thereon under Section 75 is paid within thirty days from the date of communication of order of the [Central Excise Officer] determining such service tax, the amount of penalty liable to be paid by such person under this section shall be twenty five per cent of the service tax so determined: Provided further that the benefit of reduced penalty under the first proviso shall be available only if the amount of penalty so determined has also been paid within the period of thirty days referred to in that proviso: Provided also that where the service tax determined to be payable is reduced or increased by the Commissioner (Appeals), the Appellate Tribunal or, as the case may be, the Court, then for the purposes of this section, the service tax as reduced or increased, as the case may be, shall be taken into....
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.... payable under Section 75, within 30 days from the date of communication of the order, this penalty is to be reduced to 25% of the service tax so determined. 15. By their very nature, Sections 76 and 78 of the Act operate in two different fields. In the case of Assistant Commissioner of Central Excise v Krishna Poduval -(2005) 199 CTR 58 = 2006 (1)S.T.R. 185 (Ker.) the Kerala High Court has categorically held that instances of imposition of penalty under Section 76 and 78 of the Act are distinct and separate under two provisions and even if the offences are committed in the course of same transactions or arise out of the same Act, penalty would be impusable both under Section 76 and 78 of the Act. We are in agreement with the aforesaid rule 16. No doubt, Section 78 of the Act has been amended by the Finance Act 2008 and the amendment provides that in case where penalty for suppressing the value of taxable service under Section 78 is imposed, the penalty for failure to pay service tax under Section 76 shall not apply. With this amendment the legal position now is that simultaneous penalties under both Section 76 and 78 of the Act would not be levied. However, since this amendmen....