Commissioner of Central Excise Vs. Darmania Enterprises

Commissioner of Central Excise vs Darmania Enterprises

Disposition Appeal dismissed Court Punjab and Haryana Decided Apr 17, 2009

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Citation: sooperkanoon.com/614913
Court: Punjab and Haryana High Court
Judge: M.M. Kumar and; Augustine George Masih, JJ.
Decided On: Apr 17, 2009
Subject: Service Tax
Disposition: Appeal dismissed

Case Summary

AI-generated summary - not the official court judgment text.

- Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent Appeal Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., - Held, After introduction of Section ...

Key legal issue: Service Tax
Outcome / disposition: Appeal dismissed

Parties & Advocates

Appellant / Petitioner

Commissioner of Central Excise

Respondent

Darmania Enterprises

Legal References

Reported In: 2009[14]STR741

Excerpt

.....or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - ..........of this court:whether the learned cestat is justified in setting-aside the penalty under section 78 of the finance act, 1994 enhanced by the commissioner in exercise of powers under section 84 of the act particularly when suppression of the facts with intent to evade service tax stands proved against the respondents?2. the order-in-original was passed by the assistant commissioner on 15.6.2005 (a-1) and penalty of rs. 1,000/- under sections 76 and 78 of the act was imposed by exercising power vested in him under section 80 of the act. the aforesaid discretion exercised by the assistant commissioner was interfered with by the commissioner while exercising revisional power under section 84 of the act by raising it to rs. 31,652/-. the commissioner also recorded the finding that the assessee had suppressed the value of taxable service. however, the tribunal set aside the order of the commissioner passed in exercise of revisional power and restored the order-in-original by observing that leniency shown by the original authority in terms of section 80 of the act did not suffer from any illegality and could not have been interfered with by the revisional authority.3. it is apposite to notice that against similar order dated 31.3.2008, passed by the tribunal in the case of sister concern of the assessee-respondent, namely m/s darmania telecom, gurdaspur, the revenue has also preferred an appeal, bearing s.t.a. no. 6 of 2008. the aforementioned appeal came up for consideration before us on 12.2.2009 and the same has been dismissed by observing as under:having heard learned counsel for the revenue we are of the view that the provisions of section 80 of the act in un-mistakable terms provide that despite the provisions of section 78, no penalty should be imposed on the assessee for any failure referred in that section if the assessee has shown that there was reasonable cause for the said failure. the provision under section 78 of the act is required to be acted upon.....

Full Judgment

M.M. Kumar, J.

1. The revenue has challenged order dated 31.3.2008, passed by the Customs, Excise and Service Tax Appellate Tribunal, New Delhi (for brevity, 'the Tribunal') by invoking Section 35G of the Central Excise Act, 1944 read with Section 83 of the Finance Act, 1994 (for brevity, 'the Act'). It has been claimed that the following question of law would emerge from the order of the Tribunal for adjudication of this Court:

Whether the learned CESTAT is justified in setting-aside the penalty under Section 78 of the Finance Act, 1994 enhanced by the Commissioner in exercise of powers under Section 84 of the Act particularly when suppression of the facts with intent to evade service tax stands proved against the Respondents?

2. The order-in-original was passed by the Assistant Commissioner on 15.6.2005 (A-1) and penalty of Rs. 1,000/- under Sections 76 and 78 of the Act was imposed by exercising power vested in him under Section 80 of the Act. The aforesaid discretion exercised by the Assistant Commissioner was interfered with by the Commissioner while exercising revisional power under Section 84 of the Act by raising it to Rs. 31,652/-. The Commissioner also recorded the finding that the assessee had suppressed the value of taxable service. However, the Tribunal set aside the order of the Commissioner passed in exercise of revisional power and restored the order-in-original by observing that leniency shown by the original authority in terms of Section 80 of the Act did not suffer from any illegality and could not have been interfered with by the revisional authority.

3. It is apposite to notice that against similar order dated 31.3.2008, passed by the Tribunal in the case of sister concern of the assessee-respondent, namely M/s Darmania Telecom, Gurdaspur, the revenue has also preferred an appeal, bearing S.T.A. No. 6 of 2008. The aforementioned appeal came up for consideration before us on 12.2.2009 and the same has been dismissed by observing as under:

Having heard learned Counsel for the revenue we are of the view that the provisions of Section 80 of the Act in un-mistakable terms provide that despite the provisions of Section 78, no penalty should be imposed on the assessee for any failure referred in that section if the assessee has shown that there was reasonable cause for the said failure. The provision under Section 78 of the Act is required to be acted upon in the absence of finding of fraud, collusion, wilful misstatement, suppression of facts etc., as envisaged by Section 78 of the Act. The order-in-original dated 15.6.2005 (A-1) does not record any finding of fraud, mis-statement etc., which could have been the basis for acquiring jurisdiction to impose the penalty. Accordingly, the Assessing Authority exercised the power under Section 80 of the Act and decided not to impose any penalty under Section 78. There was no basis for the Revisional Authority-cum-Commissioner to acquire the jurisdiction to impose penalty. There is no evidence produced before the revisional authority or any other authority to prove fraud, collusion, misrepresentation etc. so as to attract the application of Section 78 of the Act. In our view, the Tribunal has rightly restored the order of the Assessing Authority. Therefore, no question of law much less any substantial question of law would arise for determination of this Court.

As a consequence, the appeal fails and the same is dismissed.

4. The same reasoning would apply with all force even to the facts of the present case. Therefore, the appeal does not warrant admission and is liable to be dismissed. Accordingly the appeal fails and the same is dismissed.

Same Court & Year Punjab and Haryana · 2009 Same Parties Commissioner of Central Excise vs Darmania Enterprises Same Subject Service Tax Same Judge M.M. Kumar and; Augustine George Masih, JJ.

Service Tax