Custom, Excise & Service Tax Tribunal
Cce, Chandigarh vs M/S Vascon Engineers Pvt. Ltd on 12 June, 2013
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL West Block No. 2, R.K. Puram, New Delhi 110 066. Principal Bench, New Delhi COURT NO. I DATE OF HEARING : 06/12/2013. Service Tax Appeal No. 855 of 2009 [Arising out of the Order-in-Appeal No. 284/CE/CHD/2009 dated 04/08/2009 passed by The Commissioner (Appeals), Central Excise, Chandigarh.] For Approval and signature : Honble Shri Justice G. Raghuram, President Honble Shri Rakesh Kumar, Member (Technical) 1. Whether Press Reporters may be allowed to see : the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? 2. Whether it would be released under Rule 27 of : the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3. Whether their Lordships wish to see the fair : copy of the order? 4. Whether order is to be circulated to the : Department Authorities? CCE, Chandigarh Appellant Versus M/s Vascon Engineers Pvt. Ltd. Respondent
Appearance Shri R. Puri, Authorized Representative (DR) for the appellant.
None for the Respondent.
CORAM : Honble Shri Justice G. Raghuram, President Honble Shri Rakesh Kumar, Member (Technical) Final Order No. 58640/2013 Dated : 06/12/2013 Per. Rakesh Kumar :-
None appeared for the respondent, though a notice for hearing has been sent to them well in time. In view of this, so far as the respondent are concerned, the matter is being decided ex-parte in accordance with Rule 21 of CESTAT Procedure Rules.
2. Heard Shri R. Puri, the learned Departmental Representative, who pleaded that the only point of dispute in this case is as to whether for non-payment of service tax during the period of dispute, penalty under Section 76 of the Finance Act, 1994 for failure to discharge service tax liability by due date as well as under Section 78 ibid for evasion of service tax could be imposed simultaneously, that in this case, the Commissioner (Appeals) while upholding the imposition of penalty under Section 78, has set aside the penalty under Section 76 for failure to discharge the service tax liability by the due date on the ground that penalty under Section 76 and 78 are mutually exclusive and cannot be imposed simultaneously, that this view of the Commissioner (Appeals) is incorrect, as during the period of dispute, penalty under Section 78 for evasion of service tax and penalty under Section 76 for failure to discharge the service tax liability by the due date could be imposed simultaneously and that in this regard he relies upon the judgment of Honble Kerala High Court in the case of Asstt. Commissioner, Central Excise vs. Krishna Poduval reported in 2006 (1) S.T.R. 185 (Ker.), which has been followed by the Tribunal in the case of Bajaj Travels Ltd. vs. CCE, Chandigarh reported in 2009 (16) S.T.R. 183 (Tri. Del.). He, therefore, pleaded that the impugned order setting aside the penalty on respondent under Section 76 is not correct.
3. We have considered the submissions of the learned Departmental Representative and have gone through the records of this case.
4. While the Commissioner (Appeals) has upheld the service tax demand and has also upheld the imposition of penalty on the respondent under Section 78 of the Finance Act, 1994, he has set aside the penalty under Section 76 on the ground that penalty under Section 76 as well as 78 cannot be imposed simultaneously. We find that there is no justification for this view being taken by the Commissioner (Appeals), as it is only w.e.f. 10/5/08 by an amendment to Section 78, that a provision was introduced that if penalty is imposed under Section 78 the provisions of Section 76 would not apply. For the period prior to 10/5/08 Honble Kerala High Court interpreting the provisions of Section 76 and 78 in the case of Asstt. Commissioner, Central Excise vs. Krishna Kudval (supra) has held that incidents of imposition of penalty under Section 76 and 78 are distinct and separate under two provisions and even if the offences are committed in course of the same transaction or arise out of the same act, penalty would be imposable under both the Sections 76 as well as 78. This judgment of Honble Kerala High Court had been followed by the Tribunal in the case of Bajaj Travels Ltd. vs. CCE, Chandigarh (supra). In view of this, the impugned order setting aside the penalty under Section 76 is not correct. The same is set aside and on this point, the order passed by the original Adjudicating Authority is restored. The Revenues appeal is allowed.
(Operative part of the order pronounced in the open court.) (Justice G. Raghuram) President (Rakesh Kumar) Member (Technical) PK ??
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