2011 (11) TMI 65 - HC - Service Tax

Reduced penalty upheld for cable operator under Finance Act, 1994

COMMISSIONER OF CENTRAL EXCISE, LUDHIANA Versus M/s CITY CABLES

The case involved an appeal by the Revenue against penalties imposed on a cable operator under the Finance Act, 1994. The Tribunal allowed the operator to ... Whether penalty imposed under Section 78 of the Finance Act, 1994 can be reduced to 25% by invoking the provisions of first proviso to Section 78, when the assessee has not paid 25% of the penalty amount within 30 days of the order as required under the second proviso to Section 78 ibid - Held that:- An assessee is required to be informed to avail the benefit of second proviso so that he can deposit 25% of the penalty amount. Such option alone will satisfy the purpose of insertion of the proviso as it is a benefit, which is conferred on the assessee. The Adjudicating Authority has not given such option. - Since the amount of duty was already paid even before issuance of show cause notice, we find that direction to deposit 25% of the penalty amount in terms of the second proviso to Section 78 is fair, reasonable and meets the ends of justice. Issues:- Whether penalty imposed under Section 78 of the Finance Act, 1994 can be reduced to 25% without timely paymentRs.- Whether authorities can give the option to deposit penalty amount to the assesseeRs.- Interpretation of the provisions of Section 78 of the Act regarding penalty for suppressing value of taxable service.Analysis:The case involved an appeal by the Revenue against an order passed by the Tribunal regarding the imposition of penalties under Sections 75(A), 76, 77 & 78 of the Finance Act, 1994. The assessee, a cable operator, was found operating without registration and liable to file service tax returns. Despite depositing the duty and interest before a show cause notice was served, penalties were imposed by the Adjudicating Authority. The Commissioner (Appeals) later set aside the penalties, but the Tribunal allowed the assessee to deposit 25% of the penalty amount within 30 days, based on previous judgments.The main contention raised was whether the benefit of reduced penalty could be availed by the assessee without timely payment. The relevant provisions of Section 78 were analyzed, particularly the first and second provisos, which outline conditions for reduced penalty. The Delhi High Court's decision in K.P.Pouches Vs. Union of India was cited, emphasizing that if duty was paid before a show cause notice, the penalty could be reduced to 25%. The Court agreed with this interpretation, stating that the option to deposit 25% of the penalty amount should be given to the assessee to fulfill the purpose of the proviso and ensure justice.In conclusion, the Court dismissed the appeal, finding that no substantial question of law arose. The judgment highlighted the importance of providing the assessee with the option to avail the benefit of reduced penalty under Section 78, especially when duty was paid before the issuance of a show cause notice. The decision aligned with previous rulings and aimed to uphold fairness and justice in penalty imposition cases related to taxable services.