C.C.E., Chandigarh-Ii vs Karnial Singh, Contractor
- CitationAppeal No.ST/494/2009-CU[DB]
Ratio decidendi
The rule this decision rests on
The Tribunal holds that, under the Finance Act, 1994 as it stood in the relevant period, penalties under Sections 76 and 78 were not mutually exclusive and could both be imposed for the same default. Where a penalty under Section 78 is imposed, the adjudicating authority retains a discretion to refrain from levying a penalty under Section 76 for the same contravention, a discretion which the High Court of Punjab and Haryana has recognised in its decisions in the cases referred to in the order.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
1. Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No 2. Whether it would be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? Yes 3. Whether Lordships wish to see the fair copy of the order? Seen 4. Whether order is to be circulated to the Department Authorities? Yes
Appeal No.ST/494/2009-CU[DB]
[Arising out of Order-in-Appeal No.13/ST/Appl/CHD-II/2009, dated 19.05.2009 passed by the C.C.E.(Appeals), Chandigarh-II]
C.C.E., Chandigarh-II Appellant
Vs.
Karnial Singh, Contractor Respondent
Appearance
Mr. Amresh Jain, DR - for the appellant
None - for the respondent
CORAM: Honble Justice G. Raghuram, President
Honble Mr. R.K. Singh, Member (Technical)
Final Order No.53356/2015, dated 08.10.2015
Per Mr. R.K. Singh :
The appeal has been filed by Revenue seeking imposition of penalty under Section 76 of the Finance Act, 1994. This penalty was set aside by the Commissioner (Appeals) on the ground that penalty under Section 78 ibid has been upheld.
2. Revenue has contended that during the relevant period, penalty under Sections 76 and 78 ibid were not mutually exclusive and therefore, Commissioner (Appeals) was not correct in setting aside the penalty under Section 76 ibid.
3. When the case was taken up, there was no representation on behalf of the respondent nor was any request received for adjournment and therefore we proceed to decide the appeal on merit.
4. We have perused the provisions of Sections 76 and 78 ibid. We find that during the relevant period two provisions were not mutually exclusive. However, Punjab & Haryana High Court in C.C.E. Vs. First Flight Courier Ltd. [2011 (22) STR 622 (P&H)] held that though penalties under Sections 76 and 78 could be imposed during the relevant period, there is discretion in the adjudicating to eschew levy of penalty under Section 76 where penalty under Section 78 ibid is imposed. In the case of CCE Vs. Pannu Property Dealers [2011 (24) STR 173 (P&H), Punjab and Haryana High Court reiterated similar view.
5. In the light of the foregoing, Revenues appeal is dismissed.
(Justice G. Raghuram)
President
(R.K. Singh)
Member (Technical)
SSK
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