2006 (2) TMI 702 - AT - Service Tax

Tribunal Upholds Service Tax Penalty, Stresses Assessing Authority's Discretion

SHARAD JAMBHEKAR & ASSOCIATES Versus COMMR. OF C. EX., NASIK

The Tribunal held that the waiver of pre-deposit requirement of the Service Tax penalty and the limitation on penalty amount imposed by the assessing ... - Issues: Waiver of pre-deposit requirement of Service Tax penalty, limitation on penalty amount, discretion of assessing authority in penalty imposition.Analysis:1. Waiver of Pre-Deposit Requirement:The case involved an application for waiver of pre-deposit requirement of the Service Tax penalty of Rs. 100 every day, as determined by the Commissioner in a review order. The Tribunal found that limiting the penalty equivalent to the amount payable in each case could not be upheld. The Tribunal referred to a decision of the Apex Court in the case of State of Madhya Pradesh v. Bharat Heavy Electricals, where it was held that the assessing authority has the discretion to levy a lesser penalty amount based on the facts and circumstances of each case. Consequently, the Tribunal concluded that the order of limiting the penalty of the Service Tax determined could not be upheld.2. Limitation on Penalty Amount:The Tribunal emphasized that even though a mandatory penalty of 100% was prescribed, it should not be upheld without a finding by the assessing officer as to why the penalty levels have been kept at the mandatory levels. The Tribunal noted that there were no reasons provided in the order, and the reasons that were mentioned appeared to be in conflict with the order. Therefore, the Tribunal held that the exercise of discretion by the Commissioner in this matter could not be upheld. As a result, the appeals were allowed at this stage, after the waiver of pre-deposit, by upholding the order of the lower authority and setting aside the impugned orders.3. Discretion of Assessing Authority in Penalty Imposition:The Tribunal reiterated the principle established by the Apex Court that the assessing authority has the discretion to determine the reasonable amount of penalty to be imposed, with the maximum penalty being ten times the amount of the entry tax. This discretion allows the assessing authority to levy a lesser penalty amount based on the specific facts and circumstances of each case. The Tribunal highlighted that the provision for levy of penalty equal to ten times the amount of entry tax should be construed as a maximum limit, and not a fixed amount, providing room for the imposition of a lesser penalty amount as deemed appropriate by the assessing authority.In conclusion, the Tribunal's judgment emphasized the importance of considering the specific circumstances of each case in determining the appropriate penalty amount, highlighting the assessing authority's discretion in penalty imposition and the need for valid reasons to support the penalty levels set.