2016 (7) TMI 1079 - AT - Service Tax

Tribunal upholds waiver of penalties under Sections 76, 77 & 78, dismisses Revenue's appeal

Commissioner of Central Excise, Pune Versus M/s. Taib Landscape Studio Pvt. Ltd.

The Tribunal upheld the decision to waive penalties under Sections 76, 77 & 78 by invoking Section 80. The Order-in-Original confirming the service ... Waiver of penalty u/s 80 - the penalties imposed under Section 76,77 & 78 were set aside by the Ld. Commissioner (Appeals). - the respondent has paid the entire amount of service tax along with interest and not contested the same. - the transaction in respect of the services on which the service tax was not paid was also retrieved from the books of accounts of the respondent which shows that the respondent did not try to hide the transaction. - No penalty. Issues:Waiver of penalty under Sections 76, 77 & 78 by invoking Section 80 - Confirmation of demand of service tax and interest - Applicability of penalties due to delayed payment of service tax - Financial hardship as a reason for non-payment of service tax.Analysis:The appeal in this case was directed against an Order-in-Appeal passed by the Commissioner (Appeals) Central Excise, Pune-I, where penalties under Sections 76, 77 & 78 were waived by invoking Section 80. The Order-in-Original confirmed the demand of service tax amounting to Rs. 25,00,640/- and interest of Rs. 2,81,592/-, which the respondent had paid along with interest. The respondent provided Landscape Designing and Consultancy services and Business Support Services, with the Business Support Service escaping assessment during 2006-07. The adjudicating authority confirmed a tax liability of Rs. 24,90,909/- and interest, which the respondent paid. The penalties imposed were set aside by the Ld. Commissioner (Appeals), but the demand of service tax and interest were upheld, leading to the appeal before the Tribunal.The Revenue argued that since the respondent collected service tax but did not deposit it in the government account, no relief such as waiver of penalty should be granted. Despite notice, no one appeared on behalf of the respondent. Upon review, the Tribunal noted that the respondent had paid the entire service tax amount along with interest and did not contest the same. The transaction details were retrieved from the respondent's books, indicating no attempt to conceal the transaction. The Ld. Commissioner (Appeals) set aside the penalties under Sections 76, 77 & 78 based on similar precedents and the fact that the service tax and interest were paid before the adjudication.The Ld. Commissioner's findings cited a case precedent where delayed payment of service tax did not mandate penalties under Sections 76 and 77 if the tax and interest were paid before adjudication. The Ld. Commissioner also considered the financial hardship claimed by the respondent as a reason for non-payment, citing relevant judgments to support the decision to set aside penalties under Section 78 as well. Ultimately, the Order-in-Original confirming the service tax demand and interest was upheld, but the penalties were waived under Section 80 of the Finance Act, 1994. The Tribunal found no issue with the order, dismissing the Revenue's appeal and disposing of the cross-objection.In conclusion, the Tribunal upheld the decision to waive penalties under Sections 76, 77 & 78 by invoking Section 80, considering the payment of service tax and interest before adjudication, lack of concealment of transactions, and the financial hardship claimed by the respondent as valid reasons for non-payment. The Order-in-Original confirming the service tax demand and interest was maintained, while the penalties were set aside based on legal precedents and the specific circumstances of the case.