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ST - Petitioner having failed to remit any amounts as tax in relevant years, no adjustments can be made in penalty levied, on basis of amounts paid subsequent to relevant years: HC

By TIOL News Service

ERNAKULAM,, JUNE 11, 2014: A couple of issues were raised by the petitioner in this Writ Petition filed before the Kerala High Court.

The issues raised and the decision of the High Court is as below -

+ Petitioner unable to file appeal within the time provided :

It is also trite that when the statute provides for a specific period of filing an appeal and also confers the appellate authority with specific powers to condone the delay, the appeal if not filed within the specified period or the extended period, then, the assessee cannot invoke Article 226 to get over the statutory dictate   (Assistant Commissioner of Central Excise v. Krishna Poduval 2006-TIOL-77-HC-KERALA-ST.

+ Simultaneous imposition of Penalty u/s 76 & 78 of the FA, 1994:

Two Benches of this court have held that penalty could be simultaneously imposed. However, the contention that the amendment brought by introduction of the Proviso on 10.05.2008 has not been brought to the notice of the single Judge definitely seems to be correct.However, it is seen that the assessing authority has taken into account the amendment brought in and the penalty imposed under Section 76 is only till 10.05.2008 i.e. till the date of amendment and the introduction of the proviso which bars imposition of penalty under Section 76 of the Act if penalty under Section 78 of the Act is imposed. In such circumstance, the contentions raised by the petitioner regarding the illegality in the levy of penalty cannot be sustained.

+ Imposition of penalty on the amounts deposited by the petitioner

The amounts are paid pursuant to interim orders issued by this Court. Such amounts cannot be adjusted since penalty under Section 78 of the Act has to be on the defaulted amounts subject to a maximum of double the actual amounts due. The petitioner having failed to remit any amounts as tax in the relevant years, no adjustments can be made in the penalty levied, on the basis of amounts paid subsequent to the relevant years.

+ Amounts payable by respondent hence ST liability to be kept in abeyance:

The recovery of amounts from the additional 4th respondent would have to be agitated by the petitioner, before the appropriate forum and no direction can be issued to keep in abeyance the demand of tax assessed and penalty levied, on that ground, under Article 226 of the Constitution of India.

In fine, the contentions raised by the petitioner were negatived. However, considering the plea made, the petitioner was permitted to pay the amounts due in installments.

The Writ Petition was disposed of.

(See 2014-TIOL-951-HC-KERALA-ST)


 RECENT DISCUSSION(S) POST YOUR COMMENTS
   
 
Sub: penalty under 76 and 78


This is yet another version on penalty under 76 and 78,after the Mumbai and Ahmedabad Tribunals.This points to the important aspect that ALL such cases in different appel forums should be got heard and decided by the Centralised Apex Court to avert further divergent orders.
In the instant case the adjustment of tax paid before the issue of SCN was sought for while computing the penalty under 76 and 78.However the same has not been properly presented or appreciated by Court.Any tax paid involved in a demand notice before the issue of notice is eligible to be adjudged for fixing the qualtum of penalty.Another aspect is that many adjudicators discard these payments mad while issuing the SCn and when pointed out confirm the demand including the sum and adjust the paid amount towards the tax demandedHere the basic issue is the sec 73 empowers only to demand tax not levied or paid or short paid It does not empower for adjusting the amount already paid.But penalty need to be calculated on tax not actually paid after deducting the tax paid before issue of SCN In the process if the tax deposited is treated as tax payable from the beginning of defaulted period ,the dues prior to 10 05 2008 would be nominal in the instant case ,which unfortunately the petitioner did no get in the judgment





















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