Service Tax : When section 80 has been found to be invocable for waiving penalty under section 76, it is not possible to argue that same (i.e. section 80) will not be invocable mutatis mutandis for waiving penalty under section 78
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[2014] 51 taxmann.com 7 (New Delhi - CESTAT)
CESTAT, NEW DELHI BENCH
Mohan Poddar
v.
Commissioner of Central Excise, Raipur*
JUSTICE G. RAGHURAM, PRESIDENT
AND R.K. SINGH, TECHNICAL MEMBER
FINAL ORDER NO. 53496 OF 2014
ST/444/2009-CU(DB)
AUGUST 28, 2014
Section 80, read with sections 76, 77 and 78 of the Finance Act, 1994 - Penalty - Not to be imposed in certain cases - Period from 2-7-2005 to 16-8-2007 - Assessee was providing 'construction services' to Chhatisgarh Housing Board but was not paying service tax - Department demanded service tax with interest and penalty - Assessee argued that : (a) it was not aware of levy of service tax, (b) it paid major service tax with interest prior to issuance of notice, (c) it took up matter with Housing Board to recover service tax from them; (d) it had paid service tax in excess of total demand and therefore, penalties were liable to be waived - Adjudicating authority waived penalty under section 76 but sustained penalty under sections 77 and 78 - HELD : Assessee's client was Chhattisgarh Housing Board and therefore, no black money transactions were involved - Adjudication order did not discuss allegation of suppression and merely concluded that there was suppression - When section 80 is invoked to waive penalty under section 76, section 80 will apply for waiving penalty under section 77 or 78 also - Hence, all penalties were waived [Para 6] [In favour of assessee]
Section 78, read with sections 76 and 80, of the Finance Act, 1994 - Penalty - For evasion of duty/tax - When section 80 has been found to be invocable for waiving penalty under section 76, it is not possible to argue that same (i.e. section 80) will not be invocable mutatis mutandis for waiving penalty under section 78 ibid - Where department concedes that there is absence of mala fide; then, in such a situation, even otherwise penalty under section 78 ibid cannot be imposed inasmuch as penalty under that section requires mans rea [Para 6] [In favour of assessee]
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[2014] 51 taxmann.com 7 (New Delhi - CESTAT)
CESTAT, NEW DELHI BENCH
Mohan Poddar
v.
Commissioner of Central Excise, Raipur*
JUSTICE G. RAGHURAM, PRESIDENT
AND R.K. SINGH, TECHNICAL MEMBER
FINAL ORDER NO. 53496 OF 2014
ST/444/2009-CU(DB)
AUGUST 28, 2014
Section 80, read with sections 76, 77 and 78 of the Finance Act, 1994 - Penalty - Not to be imposed in certain cases - Period from 2-7-2005 to 16-8-2007 - Assessee was providing 'construction services' to Chhatisgarh Housing Board but was not paying service tax - Department demanded service tax with interest and penalty - Assessee argued that : (a) it was not aware of levy of service tax, (b) it paid major service tax with interest prior to issuance of notice, (c) it took up matter with Housing Board to recover service tax from them; (d) it had paid service tax in excess of total demand and therefore, penalties were liable to be waived - Adjudicating authority waived penalty under section 76 but sustained penalty under sections 77 and 78 - HELD : Assessee's client was Chhattisgarh Housing Board and therefore, no black money transactions were involved - Adjudication order did not discuss allegation of suppression and merely concluded that there was suppression - When section 80 is invoked to waive penalty under section 76, section 80 will apply for waiving penalty under section 77 or 78 also - Hence, all penalties were waived [Para 6] [In favour of assessee]
Section 78, read with sections 76 and 80, of the Finance Act, 1994 - Penalty - For evasion of duty/tax - When section 80 has been found to be invocable for waiving penalty under section 76, it is not possible to argue that same (i.e. section 80) will not be invocable mutatis mutandis for waiving penalty under section 78 ibid - Where department concedes that there is absence of mala fide; then, in such a situation, even otherwise penalty under section 78 ibid cannot be imposed inasmuch as penalty under that section requires mans rea [Para 6] [In favour of assessee]
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