2009 (12) TMI 693 - AT - Service Tax

Summary

Issues involved: Determination of penalty u/s 78 of the Finance Act, 1994, modification application for pre-deposit, waiver of pre-deposit, financial difficulties of the appellant.

Issue 1: Determination of Penalty u/s 78
The Appellate Tribunal directed the appellant to pre-deposit Rs. 50 lakhs out of the penalty amount imposed on them u/s 78 of the Finance Act, 1994. The appellant sought a modification for reducing the pre-deposit amount or an extension of time, which was partially granted. The appellant challenged the orders in a Writ Petition before the High Court but later withdrew it with permission to file a miscellaneous application before the Tribunal. The Tribunal heard arguments from both sides regarding the applicability of Section 78 to the case.

Issue 2: Applicability of Section 78
In the miscellaneous application, the appellant requested a total waiver of pre-deposit or a reduction to 10% of the penalty amount, arguing that Section 78 is not applicable to their case. They contended that the demand of Service tax was under Section 73A, not Section 73, and thus, no penalty should be imposed u/s 78. However, the Commissioner confirmed the demand of Service tax and imposed a penalty u/s 78, stating that the appellant did not challenge the demand under Section 73 in their reply to the show-cause notice. The appellant's argument that their payments were made under Section 73A was considered a new case by the Tribunal.

Issue 3: Financial Difficulties of the Appellant
The appellant claimed financial difficulties and submitted a certificate from their chartered accountant stating their current liabilities. However, the Tribunal found the certificate unsupported by requisite accounts and insufficient to prove the claimed financial hardships. Despite this, the Tribunal granted the appellant 4 weeks to deposit the required amount of Rs. 50 lakhs in the interest of justice.

This judgment highlights the Tribunal's decision regarding the pre-deposit of penalty amount u/s 78, the applicability of the relevant sections of the Finance Act, and the consideration of the appellant's financial situation in the case.