Commissioner of GST & Central Excise, Chennai Versus M/s. SSI Media India Pvt. Ltd.
Service Tax
2019 (2) TMI 1566 – CESTAT CHENNAI – TMI
CESTAT CHENNAI – AT
Dated:- 26-2-2019
Appeal No. ST/410/2012 – Final Order No. 40378/2019
Service Tax
Ms. Sulekha Beevi C.S., Member (Judicial) And Shri Madhu Mohan Damodhar, Member (Technical)
Shri B. Balamurugan, AC (AR) for the Appellant
None for the Respondent
ORDER
Per Bench
Brief facts are that the respondents are engaged in providing advertising services by displaying the advertisement of their clients on bus back panels, bus shelters etc., after obtaining permission from MTC, TNSTC and Southern Railway. They obtained service tax registration under the category of Advertising Agency Service. During the course of audit of the accounts of the respondents, for the period from October and November 2009, it was noticed that the respondents had short-paid service tax during the period from October 2008 to February 2009 an
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he half-year ending 31.3.2009 declared the taxable value lesser than that was actually received by them. It was further noticed that they had not discharged service tax liability for the period July 2009 to October 2009. They had not paid the service tax within the prescribed dates for the period from September 2008 to October 2009 and had not paid appropriate interest for such belated payment. This would show that the respondent is guilty of suppression of facts with intention to evade payment of duty. The adjudicating authority has failed to take note of these facts of suppression and imposed penalty only under section 76 of the Finance Act, 1994. He prayed that the impugned order may be interfered with by imposing penalty under section 78 of the Act ibid.
3. None appeared for the respondent though notices were issued for hearing.
4. The matter is taken up for disposal after hearing the ld. AR and on perusal of records.
5. The grievance of the department is that the adjudicating a
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We have given our anxious consideration to the argument put forward by the ld. AR. After the amendment with effect from 10.5.2008, last proviso to section 78 states that if penalty is payable under such section, the provisions of section 76 shall not apply. Therefore, the penalties under sections 76 and 78 are mutually exclusive. When the adjudicating authority has considered and imposed penalty under section 76, the same cannot be set aside by the Tribunal in an appeal filed by department requesting to impose penalty under Secction78. There is no ground stated in this appeal contending that penalty imposed under Section 76 is erroneous. The Hon'ble High Court of Gujarat in Commissioner of CGST & Central Excise Vs. Sai Consulting Engineering Ltd. – 2018 (15) GSTL 708 (Guj.) has held that simultaneous penalties under Section 76 as well as 78 of the Finance Act cannot be imposed. Similar view is taken in Care and Cure (P) Ltd. Vs. Commissioner of Central Excise, Chandigarh – 2015 (38) S
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