CCE Vs. PANNU PROPERTY DEALERS

JUDGEMENT

(1.) THERE are the applications filed by the Revenue for stay of the operation of the order in appeal No. 155/CE/LDH/08 dated 03/6/08 and 156/CE/LDH/08 dated 03/6/08 passed by CCE (Appeals), Chandigarh. Since, the facts and issue involved in both the appeals are common, same are being disposed of by a common order. In both these cases, the respondents are real estate agents and though this service had become taxable in the year 1997, the Respondents had neither taken registration nor were they paying service tax in respect of the taxable services of real estate agency being provided by them during period from 2001 -02 to 2003 -04. It is only on detection of non payment of tax in the year 2007, that the respondents paid the service tax alongwith the interest. However, subsequently, the show cause notices were issued for confirmation of service tax demand and imposition of penalty under Section 76, 77 and 78 and the Deputy Commissioner vide orders -in -original dated 16/10/07 and 24/10/07, in addition to confirmation of the service tax demands, also imposed penalties under Section 76, 77 and 78 of the Finance Act, 1994. The Commissioner (Appeals), however, by the impugned orders while upholding the service tax demands within the five years period and imposition of penalty under Section 78, set aside the penalties under Section 76 and 77. It is against the Commissioner (Appeals)'s orders setting aside the penalties imposed under Section 76 & 77 that Revenue has filed these appeals alongwith stay petitions.

(2.) THE learned departmental representative pleaded that from the language of Section 76, as it stood during the period of dispute, penalty under this Section is attracted if the service tax is not paid on due date and that it is only in the budget year in (Sic) 2008 Section 78 is attracted in the cases where there is mens rea and penalty under Section 76 is attracted in those cases of failure to pay the service tax where there is no mens rea, that cases in which penalties have been imposed under Section 78 cannot falls in respect of the same service tax evaded for a double penalty under Section 76 also, that simultaneous imposition of penalty under Section 76 & 78 is too harsh and that if the penalty has been imposed under Section 78, separate imposition of penalty under Section 76 is not called for. In view of this, I am of the view that, prima facie, there is no justification for staying the impugned orders. The stay applications filed by the Revenue are therefore dismissed. Section 78 was amended, providing that if penalty under Section 78 is imposed, penalty under Section 76 is not warranted. However, during the period of dispute, there was no such provision and therefore, penalty under Section 76 is warranted and the Commissioner (Sic) has wrongly set aside the same.

(3.) I have carefully considered the submissions from both the sides. I find that on this issue, this Tribunal in the case of The Financers v. CCE, Jaipur (Supra) and CCE, Ludhiana v. Silver Oak Gardens Resort (Supra) has taken a view that penalty under