TaxTMI 
TaxTMI 
2016 (3) TMI 575
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....ices are recorded in the records of the assessee has come into force w.e.f. 8/4/2011. Though the adjudication was done after this date but offence of evasion of service tax has taken place prior to 8/4/2011 and accordingly unamended provisions of Section 78 according to which penalty equivalent to the service tax is imposable, shall apply. 4. None appeared on behalf of the respondent. It was observed that on the earlier occasion on 18/3/2015 and 11/1/2016, no one appeared nor any request for adjournment was found on record. This clearly shows that the respondent is not interested in pursuing their case. I, therefore, have no option except to decide the appeal on basis of records available. 5. On careful consideration of the grounds of appeal, submission made by Ld. A.R. and the findings of the impugned order, I find that the only issue to be decided by me is whether the unamended provision of Section 78 according to which 100% penalty or amended provision of Section 78 according to which 50% penalty is applicable in case the where transactions are recorded in the books of the assessee, when the offence was taken place during the period of unameded Section 78. I find that in t....
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....s also placed before the Parliament. In the case of changes in Central Excise Act, 1944 and Finance Act, 1994 dealing with Central Excise & Service Tax matter, the legislative changes are contained in the Finance Act which is introduced every year. When, the Finance Act is introduced every year. When the Finance Act is introduced in the Lok Sabha by the Hon'ble Finance Minister, it is done alongwith a Budget Speech by the Hon'ble Finance Minister which explains the intention behind introducing the changes in the Central Excise Act, 1944 and the Finance Act, 1994. The said intention & rationale is reflected in the Budget Speech of Hon'ble Finance Minister made in Lok Sabha on 28/2/2011, as contained in para 192 of the Budget Speech, which is reproduced as below: "192. In keeping with our thrust to encourage voluntary compliance, the penal provisions for Service Tax are being rationalised. A key component of this strategy would be to treat less harshly those who have maintained truthful records but have fallen short of discharging their tax liability. Simultaneously, deliberate evaders with unrecorded business transactions will be dealt with more severely. Simila....
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....posed for deletion. As a result, the benefit of reduced penalty shall not be available in cases of fraud, mis-statement, suppression, collusion etc. in the ordinary course. However, revised benefit will be available under the new sub-section 4A of section 73 in situations where the true and complete account of transactions is otherwise available in the specified records and the assessee during the course of audit, verification or investigation pays the tax dues, together with interest and the reduced penalty. It is clarified that the assessee can also avail this benefit on his own also. The extent of penalty is being further reduced to 1% per month of the tax amount for the duration of default, with an upper ceiling of 25% of the tax amount. 4.6 Interest rate for delayed payment of service tax is being increased to 18% per annum, effective 01.04.2011 (Notification 15/2011-ST). A concession of 3% has been proposed in the Bill for tax-payers whose turnover during any of the years covered in the notice or the preceding financial year is below Rs. 60 lakh. 4.7 Penalty for failure to pay tax under section 76 is being halved. 4.7 Penalty for failure to pay tax under sec....
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....belief that no service tax is payable or incorrect interpretation of provisions of law but had recorded and captured the relevant transactions in their specified records; and (ii) those person's who were liable to pay service tax but had not willfully not paid the same by indulging in fraude, mis-statement, suppression, collusion etc. and by not recording and capturing the relevant transactions in their specified records. 9. Thus, in the context of Section 38A of Central Excise Act, 1944, it is clear that when Section 78 of the Finance Act,1994 was substituted w.e.f. 8/4/2011, the intentin in respect of the mechanism for ensuring compliance, by way of imposition of penalty under the provisions of Section 78 of the Act, was different from the intention or rationale as was contained in the said Section 78, as it existed prior to 8/4/2011. Therefore the saving provisions under the said Section 38A of the CEA are not capable of saving the provisions of erstwhile Section 78 of the Act, as they existed prior to their substitution w.e.f. 08.04.2011. 10. IN addition, I have also noticed that what can be saved under Section 38A of the CEA can only be any Rule, Notification or Orde....
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....l provision substitutes an earlier provision, and the offence remains the same, then the earlier legal provision is obliterated. 12. Further, I find that in the present case, the Rule of beneficial construction is also applicable. In the present case, it is fact that the offence has remained the same, but the effect of the substituted provisions of law has a beneficial effect and in fact that is the ground of the present appeal. The Rule of the Beneficial Construction was upheld by the Hon'ble Supreme Court, in respect of the effect of amendment of law, in the case of T.Barai vs. Henry Ah Hoe [(1983)-1-SSC-177] the relevant portion of which is reproduced as under: "22. It is only retroactive criminal legislation that is prohibited under Art. 20(1). The prohibition contained in Article 20(1) is that no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence prohibits nor shall he be shall be subjected to a penalty greater than which might have been inflicted under the law in force at the time of the commission of the offence. It is quite clear that in so far as the Central Amendmen....
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....enefit of Probation of Offenders Act,1958 which had come into force after the accused had been convicted of a criminal offence. The court by majority of 2:1 answered the question in affirmative. Subha Rao, J, who delivered a majority opinion, concluded that in considering the question, the rule of beneficial construction required that even ex post facto law of the type involved in that case should be applied to reduce the punishment. 25. It is settled both on authority and principle that when a later statute again describes an offence created by a former statute and affixes a different punishment, or varies the procedure, the earlier statute is repealed by implication. In Michell vs. Brown (1958) 120 SCR 676] Lord Cambel put the matter thus: It is well settled rule of construction that, if a the later statute again describes an offence created by a former statute and affixes a different punishment, varying the procedure, the earlier statute Is repealed by the later statute see also Smith Vs. Benabo [(1937 1 All ER 523]. In Regina vs. Youle, [1961) 158 ER 311] Marin B said in the oft quoted passage: If a statute deals with a particular class of of....