C.C.E., Ludhiana vs M/S. Sharma Trading Co
- CitationAppeal No.ST/899/2009-CU[DB]
Ratio decidendi
The rule this decision rests on
Where a penalty under Section 78 of the Finance Act, 1994 is imposed for the same default, the adjudicating authority retains discretion to refrain from imposing a penalty under Section 76 of that Act, as the Punjab & Haryana High Court has declared in the law applicable to the relevant period; accordingly, the dropping of a Section 76 penalty by the appellate authority, where Section 78 penalty was sustained, does not warrant interference in Revenue's appeal.
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/899/2009-CU[DB]
[Arising out of Order-in-Appeal No.147/CE/LDH/2009, dated 20.08.2009 passed by the C.C.E.(Appeals), Chandigarh-I]
C.C.E., Ludhiana Appellant
Vs.
M/s. Sharma Trading Co. Respondent
Appearance
Mrs. Suchitra Sharma, DR - for the appellant
None - for the respondent
CORAM: Honble Justice G. Raghuram, President
Honble Mr. R.K. Singh, Member (Technical)
Final Order No.52915/2015, dated 17.09.2015
Per Justice G. Raghuram :
Proceedings were initiated against the respondent/ assessee vide Show Cause Notice dated 07.04.2008 proposing service tax levy of Rs.4,73,280/- apart from interest and penalties as proposed, for having provided the taxable Business Auxiliary Service (BAS) during 09.07.2004 to 31.12.2006, by way of promoting sale of goods of M/s. Oswal Woolen Mills Ltd. for which consideration of Rs.46,40,000/- was allegedly received. After due process, the Asst. Commissioner of Central Excise, Ludhiana confirmed the demand of Rs.4,73,280/- apart from interest under Section 75 and penalties under Sections 76, 77 and 78 of the Finance Act, 1994.
2. Aggrieved by the primary adjudication order, the assessee preferred an appeal which was disposed of by the ld. Commissioner (Appeals), Lucknow vide the impugned order dated 30.08.2009. Ld. Appellate Commissioner after referring to several precedents allowed the appeal and dropped penalty under Section 76 of the Act while confirming service tax demand to the extent of Rs.3,51,723/- along with penalties under Sections 77 and 78 of the Act. Revenue is in appeal contending that the ld. Appellate Commissioner erred in dropping penalty under Section 76 of the Act. This is the only issue in this appeal. The Punjab & Haryana High Court in C.C.E. Vs. First Flight Courier Ltd. [2011 (22) STR 622 (P&H)] ruled 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 is imposed.
3. In the light of the law declared, this appeal by Revenue has no merits and is dismissed.
(Justice G. Raghuram)
President
(R.K. Singh)
Member (Technical)
SSK
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