2015 (3) TMI 916 - AT - Service Tax

Court sets aside penalty under Section 78 for Business Auxiliary Service, emphasizes fresh evaluation.

The court set aside the penalty imposed under Section 78 for Business Auxiliary Service for an extended period, remanding the matter to the original ... Penalty u/s 78 - Suppression of facts - Business Auxiliary service - Held that:- it would serve the interest of justice if the impugned order is set aside and the matter is remanded to original adjudicating authority with a direction to consider the liability to penalty also afresh without taking into account the observations of the learned Commissioner (Appeals) that penalty is imposable. There are several decisions taking a view that where an assessee is paying tax as a receiver, extended period may not be invokable if the situation is revenue-neutral. Therefore the consideration of penalty becomes a question of application of facts and law and it would be appropriate if the learned original adjudicating authority reconsiders the issue in the light of decisions that may be cited and the law and the facts. - Matter remanded back - Decided in favour of assessee. Issues:1. Appeal against imposition of penalty under Section 78 in respect of demands on Business Auxiliary Service for an extended period.Analysis:The appeal pertains to a common order dated 15.04.2014, addressing two show-cause notices issued to the appellants regarding Clearing and Forwarding Services and Business Auxiliary Service. While no grievance was raised regarding Clearing and Forwarding Service, the appellants contested the penalty imposed under Section 78 for Business Auxiliary Service. The appellants had paid the service tax amount but disputed the penalty invoked based on an allegation of suppression of facts. The Commissioner confirmed the penalty for the extended period, leading to the appellants' grievance on this issue.The learned counsel argued that similar issues regarding penalty imposition and the invocation of an extended period had been considered by the Tribunal in previous cases. Referring to the cases of Dineshchandra R. Agarwal Infracon Pvt. Ltd. and Essar Steel Ltd., the counsel highlighted that the Tribunal had held that the extended period should not have been invoked, and consequential penalty could not have been imposed. However, failure to appeal against the penalty imposition could lead to finality, necessitating the current appeal.Considering the arguments presented, the presiding judge deemed it necessary in the interest of justice to set aside the impugned order and remand the matter to the original adjudicating authority. The direction was to reevaluate the liability to penalty afresh without being influenced by the previous observations regarding penalty imposability. The judge emphasized that the consideration of penalty in cases where the assessee is paying tax as a receiver involves a nuanced analysis of facts and law. It was noted that various decisions supported the view that the extended period may not be invoked if the situation is revenue-neutral. Therefore, the original adjudicating authority was instructed to reconsider the penalty issue in light of relevant decisions, laws, and facts. The appellants were to be granted a reasonable opportunity to present their case before a final decision was made.The operative portion of the order was pronounced in open court on 24.12.2014.