2019 (2) TMI 1307 - AT - Service Tax

Member reduces penalty under Section 76 to 25% & sets aside penalty under Section 78, granting fair resolution.

The Member (Judicial) reduced the penalty imposed under Section 76 to 25% of the total penalty amount, which had already been deposited by the appellant. ... Imposition of penalty u/s 76 of FA - malafide intent or not - Held that:- In terms of the provisions of Finance Act, if an assessee deposits the entire dues along with interest and 25% of the penalty, the penalty imposed under Section 78 is required to be reduced to 25%. However, in the present case, the appellant had already deposited 25%, though under Section 78, which penalty stands set aside by Commissioner (Appeals) - the penalty imposed under Section 76 is reduced to 25% of the same, which already stands deposited by the appellants - balance penalty is set aside - appeal disposed off. Issues: Imposition of penalty under Section 76 of the Finance Act, 1994Analysis:1. Confirmation of Demand and Imposition of Penalties: The appellant was subjected to a demand for consulting engineering services along with penalties under Sections 76, 77, and 78 of the Finance Act, 1994. The appellant promptly deposited the entire service tax, interest, and 25% of the penalty imposed under Section 78 within 30 days of the order.2. Challenge Before Commissioner (Appeals): The appellant contested the penalties imposed by the original adjudicating authority before the Commissioner (Appeals). The appellate authority noted that since there was no proposal in the Show Cause Notice to impose penalties under Sections 77 and 78, the imposition of these penalties was deemed unjustified. Consequently, the penalties under Sections 77 and 78 were set aside, while the penalty under Section 76 was upheld as per the initial proposal.3. Contentions of the Appellant and Revenue: The appellant's advocate argued that the non-deposit of service tax was not due to any malice but rather a genuine belief that it was not required during a period of confusion in the industry. The advocate further highlighted that 25% of the penalty under Section 78, which was set aside by the Commissioner (Appeals), had already been deposited. On the other hand, the Revenue's representative emphasized that the appellant's payment of the demand without dispute indicated the liability, and there was no evidence of bona fide intentions on the appellant's part.4. Judgment and Decision: After considering the arguments and facts presented, the Member (Judicial) reduced the penalty imposed under Section 76 to 25% of the total penalty amount, which had already been deposited by the appellant. Given that the penalty under Section 78, which was also partially paid, had been set aside, the remaining penalty under Section 76 was deemed unnecessary and set aside. The appeal was disposed of with this decision.5. Conclusion: The judgment clarified the applicability of penalties under different sections of the Finance Act, 1994, based on the appellant's actions and intentions. By reducing the penalty under Section 76 to the extent already paid and setting aside the remaining amount, the tribunal balanced the interests of the appellant and the Revenue, providing a fair resolution to the dispute.