TaxTMI 
TaxTMI 
2008 (2) TMI 140
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....Sections 76 & 78 of the Finance Act, 1994. The adjudicating authority after going through the records of the case and after giving a personal hearing to the appellants dropped the demand of service tax as the same has already been paid by the Noticee on 28-2-2002. He also dropped the imposition of penalty under Sections 76 & 78 of the Finance Act. The revisionary authority, Commissioner of Service Tax, Bangalore, examined the order of the Assistant Commissioner dropping the proceedings and came to the conclusion that the said order was not legal and proper on several grounds. According to the revisionary authority, the Asst. Commissioner dropped the proposal to impose penalty by arbitrary exercise of powers conferred under Section 80 of the Finance Act, 1994. The assessee did not prove any reasonable cause for their failure to comply with the provisions mentioned in Section 80 of the Act. The Assistant Commissioner did not record any reason for exercising the discretion under the said Section 80 of the Act. On the above grounds, the revisionary authority reviewed the order of the Assistant Commissioner in exercise of the powers conferred on him under Section 84 of the Act. Conseque....
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....x is not in pari materia with the Central Excise provisions. After observing the above, he set aside the order of the Assistant Commissioner with regard to waiver of penalty under Sections 76 & 78 of the Act. He imposed penalty of Rs. 100/- for everyday during which the failure to make payment continued, under Section 76 of the Act. He imposed penalty of Rs. 30,00,000/- on the appellants under the provisions of Section 78 of the Act. The appellant is highly aggrieved over the impugned order of the Commissioner. Hence they come before the Tribunal for relief. 7. The learned Advocate who appeared on behalf of the appellants invited our attention to the following decisions of the Tribunal :- S.No. Case law Gist of case law 1. Maa Communications Bozell Ltd. v. CCE [2006 (3) S.T.R. 748 (T.- Ban.)] No Show Cause Notice to be issued while undertaking review u/s 84 for alleging suppression and also without challenging the factual position involved. 2. Mass Marketing & Advertising Services Pvt. Ltd. v. CCE [2006 (3) S.T.R. 333 (T.-Ban.)] Duty paid before Show Cause Notice - Apex Court having confirmed the view of Larger Bench decision of Tribunal & in view of K....
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....(3) S.T.R. 404 (Kar.) = 2004 (174) E.L.T. 313. 8. The Financers v. CCE - 2007 (8) S.T.R. 7 (T. - Del.)] & Opus Media & Entertainment v. CCE - 2007 (8) S.T.R. 368 (T.- Del.) Penalties both under Section 76 and 78 simultaneously not imposable as both the provisions are mutually exclusive and since Section 76 does not require mens rea whereas section 78 involves evasion with guilty mind thereof. 9. Sharad Jambhekar & Associates v. CCE - 2006 (3) S.T.R. 509 (T.- Mum) and which is followed in Desk to Desk Courier & Cargo Ltd. v. CCE - 2007 (7) S.T.R. 515 When there is no finding as to the penalty levels having to be kept at mandatory levels, no justification for imposing mandatory penalty, particularly by exercising the discretion under Section 84, while undertaking review and giving of sufficient reason is a must for sustaining the same, hi respect of a review adjudication order. 10. G.S. Financials v. CCE- 2007 (8) S.T.R. 541 (T. - Mum) Merely because nominal penalty imposed has been accepted and paid, the same does not mean that the assessee has no right to challenge enhancement of penalty in review proceedings, since from the beginning the stand has been v....
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....in-Original. (i) The service tax has to be paid only on realization; (ii) The service tax for the invoices raised in the following months 8/01, 9/01 and 2/02 for the management consulting services provided by Price Water House Coopers Development Associates has been submitted to the Department through challan, 04/2002-03; (iii) Service tax was not charged in the bill initially because of the duties of levy of service involving foreign exchange. (iv) Interest of Rs. 43,24,318/- accrued on the amount mentioned in reference 1 above was paid on the same date through challan No. 05/2002/2003 dated 23-4-2003, although the actual liability is to discharge service tax only on realization as per Finance Act read with Service Tax Rules, (v) They have paid service tax of Rs. 10,11,805/- vide challan No. 06/2002/2003 dated 23-4-2003 in advance prior to realization. (vi) As they have complied with the requirements indicated through their notice at reference 1 & 2, the penalty mentioned in the above cause notice should not be applied and (vii) The provisions of the Section 78 should not be applied as the payment of the invoice was de....