2011 (11) TMI 529 - AT - Service Tax

Tribunal dismisses Revenue appeal on service tax, penalties upheld under Section 78, Cross Objection upheld.

COMMISSIONER OF CENTRAL EXCISE CUSTOMS & SERVICE TAX, SILIGURI Versus M/s RIDDHI SIDDHI OIL INDUSTRIES

The Tribunal dismissed the Revenue's appeal against service tax confirmation and penalties, except under Section 78, due to lack of evidence challenging ... Penalty - GTA services - Notification No.12/2003-ST dated 20.6.2003 read with Notification No.2/2006-ST dated 1.3.2006 - Held that: Commissioner (Appeals) in his order has found that the ingredients of Section 78, viz. suppression of facts, willful mis-statement or violation of provisions of law with intent to evade tax did not exist in the instant case. He has also found that no evidence has been adduced that there was deliberate attempt on the part of the respondent to evade service tax. The respondent did not pay the service tax as confirmed in the impugned order on the premise that the same might have been paid by the transporter and he accordingly set aside the penalty under Section 78. The Department failed to produce evidence contrary to the same - Decided in favor of the assessee Issues: Appeal against service tax confirmation, penalty imposition under different sections, challenge to penalty under Section 78, cross objection.Analysis:1. The Revenue appealed against the Order-in-Appeal confirming service tax and penalties, except under Section 78. The respondent received goods from a Goods Transport Agency without observing prescribed conditions, leading to initiation of proceedings for service tax recovery and penalties.2. The lower adjudicating authority confirmed a service tax demand of Rs.38,057 and imposed penalties under Sections 76, 77, and 78. The Commissioner (Appeals) upheld the order but dropped the penalty under Section 78. The Revenue challenged the excess demand, but failed to provide evidence of challenging the lower authority's order.3. The Revenue contended that the service tax of Rs.7,38,392 should be confirmed and argued for upholding the penalty under Section 78. However, they couldn't prove challenging the excess demand order. The respondent supported the Commissioner (Appeals)'s order and filed a cross objection.4. The Tribunal found that the Revenue couldn't challenge the demand exceeding Rs.38,057 due to lack of evidence. Regarding the penalty under Section 78, the Commissioner (Appeals) noted no intent to evade tax or deliberate attempt by the respondent. The penalty was set aside as the Department failed to present contrary evidence.5. The Cross Objection sought dismissal of the Revenue's appeal and consequential benefits for the respondent, without challenging other findings. Upholding the Commissioner (Appeals)'s order, the Tribunal dismissed the Revenue's appeal as lacking merit, and disposed of the Cross Objection accordingly.