V.Sriram and Co. Vs. Commissioner of Central Excise, Salem - Court Judgment |
| Customs Excise and Service Tax Appellate Tribunal CESTAT Chennai |
| Nov-11-2009 |
| Appeal No.S/151 of 2008 |
| THE HONOURABLE MS. JYOTI BALASUNDARAM, VICE PRESIDENT |
| V.Sriram and Co. |
| Commissioner of Central Excise, Salem |
| Shri S.Venkatachalam, Advocate. Ms.Indira Sisupal, JDR |
i have heard both sides on the appeal against the review order of the commissioner imposing penalty under section 76 as well as under section 78 of the finance act, 1994 for delay in payment of service tax. the tax liability is not disputed by the appellants. 2. i note that the adjudicating authority has recorded a clear finding that the assessees had wilfully avoided taking out service tax registration for taxable service rendered by them and that finding has not been challenged by the assessees. the ground on which the adjudicating authority set aside penalty namely payment of the tax amount before issue of notice, is no longer good in law as payment before issue of notice is not sufficient, in the case of suppression, to hold that penalty is not payable. i, therefore, uphold the penalty on the assessees. however, i accept the contention of the assessees that penalties under section 76 and 78 are mutually exclusive and, therefore, set aside penalty of rs.39,463/- imposed under section 48, while upholding the penalty imposed under section 76. 3. the appeal is partly allowed as above.
I have heard both sides on the appeal against the review order of the Commissioner imposing penalty under Section 76 as well as under Section 78 of the Finance Act, 1994 for delay in payment of service tax. The tax liability is not disputed by the appellants.
2. I note that the adjudicating authority has recorded a clear finding that the assessees had wilfully avoided taking out service tax registration for taxable service rendered by them and that finding has not been challenged by the assessees. The ground on which the adjudicating authority set aside penalty namely payment of the tax amount before issue of notice, is no longer good in law as payment before issue of notice is not sufficient, in the case of suppression, to hold that penalty is not payable. I, therefore, uphold the penalty on the assessees. However, I accept the contention of the assessees that penalties under Section 76 and 78 are mutually exclusive and, therefore, set aside penalty of Rs.39,463/- imposed under Section 48, while upholding the penalty imposed under Section 76.
3. The appeal is partly allowed as above.