2015 (9) TMI 1440 - AT - Central Excise

Service tax demand along with interest and penalties under Sections 76, 77 & 78 of the Finance Act, 1994 - Held that - There is no doubt that the commission paid to overseas agents by the appellant was liable to service tax under BAS and the appellant is not contesting the same As decide in Jubiliant Enpro (P) Ltd. Vs. CCE, Noida 2014 (12) TMI 598 - CESTAT NEW DELHI even if at the relevant time the penalties under Section 76 & 78 were not mutually exclusive, once penalty under Section 78 has been imposed, penalty under Section 76 ibid may not be justified. Penalty under Sections 77 and 78 ibid are upheld. However, penalty under Section 78 ibid shall be 25% of the amount of demand confirmed (i.e., 25% of ₹ 35,14,649/-), if the same along with impugned demand and interest is deposited within 30 days of the receipt of this order, if the same has already not been done. Needless to say, (any) amounts already deposited towards the impugned demand, interest and penalty will be taken into account for this purpose.

Summary

Issues:
1. Confirmation of service tax demand and penalties under Sections 76, 77 & 78 of the Finance Act, 1994.
2. Imposition of penalties under Sections 76, 77, and 78.
3. Contention regarding penalty imposition under Section 76 in light of judicial pronouncements.
4. Consideration of penalty options under Section 78.
5. Disposition of the appeal.

Analysis:

1. The appellant contested the confirmation of service tax demands and penalties under Sections 76, 77 & 78 of the Finance Act, 1994, related to commission payments to overseas agents without paying service tax under Business Auxiliary Service (BAS) under reverse charge mechanism during a specific period.

2. The appellant did not dispute the demands and interest but argued against the penalty under Section 76, highlighting the timely payment of the demanded amount and 25% penalty within 30 days of receiving the Order-in-Appeal.

3. The Tribunal considered the appellant's contentions and referred to the case law of Jubiliant Enpro (P) Ltd. Vs. CCE, Noida, where it was established that once penalty under Section 78 is imposed, penalty under Section 76 may not be justified. The Tribunal agreed with this principle and noted the absence of an option for reduced mandatory penalty under Section 78 in the lower authorities' decisions.

4. Relying on the judicial pronouncements and the decision of the Gujarat High Court in Ratnamani Metals & Tubes case, the Tribunal upheld the service tax demands and interest, set aside the penalty under Section 76, and maintained penalties under Sections 77 and 78. However, the penalty under Section 78 was reduced to 25% of the confirmed demand if paid within 30 days of the order.

5. Consequently, the Tribunal disposed of the appeal by upholding the demands and interest, setting aside the penalty under Section 76, and maintaining penalties under Sections 77 and 78, with the provision for a reduced penalty under Section 78 if paid within the specified timeline.

This detailed analysis reflects the Tribunal's thorough consideration of the appellant's contentions, relevant legal precedents, and the final disposition of the appeal concerning service tax demands and penalties under the Finance Act, 1994.