2007 (6) TMI 5 - AT - Service Tax

Demand (Service tax) Appellant were not pay the service tax on the brokerage activity and accordingly demand were made alongwith interest and penalties under section 76,77and 78 of the FA, 1994 Appeal allowed by way of remand to the Commissioner (Appeals)

Summary

Issues: Appeal against order-in-appeal, non-payment of Service Tax, penalties under Sections 76, 77, and 78 of Finance Act, 1994, time-barred show cause notice, invocation of Section 80, setting aside penalties, limitation argument.

Analysis:

The appeal before the Appellate Tribunal CESTAT, Mumbai arose from an order-in-appeal dated 25-3-2004. The respondents, engaged in stock broking services, had ceased paying Service Tax between July 96 to August 97, leading to multiple show cause notices. The adjudicating authority confirmed the demand and imposed penalties under Sections 76, 77, and 78 of the Finance Act, 1994, along with interest. The Ld. Commissioner (Appeals) upheld the demand and interest but set aside the penalties under Section 78, prompting appeals and cross objections from both parties.

The key contention by the Ld. DR was that penalties under Section 78 should not have been set aside as the respondents collected Service Tax from customers but failed to remit it to the government, constituting a valid case for penalty imposition. Conversely, the Ld. Advocate for the respondent argued that the setting aside of penalties under Section 78 was justified, citing reasonable cause under Section 80 for non-payment. Additionally, they challenged the time-barred show cause notice, alleging the demand was invalid due to the delay in issuance.

Upon reviewing the submissions, the Tribunal noted discrepancies in the Ld. Commissioner (Appeals)'s order, particularly the lack of reasoning for invoking Section 80 and setting aside penalties under Section 78. The Tribunal highlighted that the issue of time-bar, though raised for the first time, could be considered at the appellate level. As such, the impugned order was set aside, directing a fresh consideration by the Commissioner (Appeals) on the limitation issue and the application of Section 80, with the respondents granted a personal hearing.

In conclusion, the Tribunal allowed the appeal by remanding the matter back to the Commissioner (Appeals) for a reevaluation of the issues related to limitation and penalty imposition, emphasizing the need for a thorough assessment of the submissions and legal provisions involved.