2025 (9) TMI 1342

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....al Property Right Service. During audit of their records, the officers found that the appellant had received services from M/s Gurucharan S. Bhuller, Germany and paid them charges under the head of "Legal & Professional Charges/Consulting Charges". These services were for getting co-ordination with their collaborator namely M/s. KHS Maschinen-und-Anagenbau AG, Germany for 1. Indian Customers visits including escorting, translation etc 2. Technical data transmission with required translation 3. Board matters 4. Miscellaneous support for visiting employee on training The department alleged that the appellant obtained Business Support Service but have not paid service tax on them under reverse charge mech....

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....Finance Act, 1994 as this is not attributable to any mala fide motive or intent to defraud the government revenue or delay in payment of service tax. Hon'ble Tribunal in the case of Chansama Taluka Sarvoday Mazdoor Kamdar Sahakari Mandli Ltd Vs. CCE, Ahmedabad, 2012-TIOL-41-CESTAT-AHM, held that whether it is before amendment of Section 78 of the Finance Act, 1994 or thereafter, double penalty under Section 76 and 78 cannot be imposed. b) As the allegation of suppression of facts or wilful misstatement made in the show cause notice and sustained by the original Adjudicating authority, it was mandatory on their part to impose penalty under Section 78. If that be so, penalty under Section 76 would not arise. c) The records o....

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....limitation, it is essential to establish one of the 5 necessary elements and their existence cannot be presumed because the assessee is operating under self-assessment. For invocation of simultaneous penalty under Section 76 and 78, learned Advocate relied upon the decision of Hon'ble Hight Court in the case of M/s. Raval Trading Company Vs. CST- 2016 (2) TMI 172. He also mentioned that the same position has been maintained in the following decisions: - • Commissioner v. Tejas Agency 2014 (340) STR 803 (Guj) • M&B Engineering Limited v. CCE 2024 (7) TMI 313 CESTAT • The Financiers vs. CCE, Jaipur, 2007 (8) STR 7 (Tri-Del); • CCE, Ludhinana vs. Pannu Property Dealer, 2009 (14) STR 687 (Tri-....

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.... penalty under Section 76 and 78 of the Finance Act, 1994. We find that similar issue came up before Hon'ble High Court of Gujarat in the case of M/s Raval Trading Company Vs. Commissioner of Service Tax reported at 2016 (42) STR 210 (Guj.), wherein Hon'ble Court had discussed insertion of Proviso to Section 78. The relevant paras 11, 12 and 16 of the judgment are reproduced below: - "11. In view of the nature of this further proviso and the relevant position of the two statutory provisions both pertaining to penalty, we are convinced that the proviso was in the nature of clarificatory amendment and not creating a liability for the first time. Even without the aid to this further proviso to Section 78, one entire plausible view was....

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....eas. In other words, the cases of non-payment of tax by reason of fraud or collusion or wilful misstatement or suppression of facts, etc., would be covered under Section 78 of the Finance Act, 1994, and all cases other than those envisaged under Section 78 would be covered under Section 76 of the Finance Act, 1994. 16. Under the circumstances, we answer the additional question in favour of the appellant-assessee and delete the penalty under Section 76 of the Finance Act, 1994, while upholding the penalty imposed under Section 78 and other penalties. The tax appeal is accordingly disposed of with no order as to costs." 5.1 We also find that in the case of The Financers Vs. Commissioner of Central Excise, Jaipur and in the case of....