2016 (12) TMI 1616 - AT - Service Tax

Penalty u/s 77 and 78 - payment of tax before issuance of SCN - Held that - the respondent is a Govt. of India Undertaking engaged in the business of planning, design, consultancy in the matter of mining. The respondent paid the entire amount of tax before issuance of the SCN voluntarily - there is no material available on record of fraud, collusion or willful misstatement etc. to evade payment of tax. Therefore, the imposition of penalty u/s 78 of the Act, 1994 is not justified. The imposition u/s 77 is proper for not making the application to the Superintendent. Appeal allowed - decided partly in favor of appellant.

Summary

Issues:
1. Imposition of penalties under Section 78 and Section 77 of the Finance Act, 1994.
2. Validity of penalties imposed by the Adjudicating Authority.
3. Voluntary payment of tax by the respondent before the Show Cause Notice.
4. Justification for the imposition of penalties under Section 78 and Section 77.
5. Application of Section 80 of the Finance Act, 1994 for waiver of penalty under Section 78.

Analysis:
The appeal before the Appellate Tribunal CESTAT Kolkata involved the imposition of penalties under Section 78 and Section 77 of the Finance Act, 1994. The Adjudicating Authority had imposed a penalty of &8377; 16,41,065 under Section 78 and &8377; 1,000 under Section 77. The Commissioner(Appeals) set aside these penalties, leading to the revenue filing an appeal. The respondent, a Govt. of India Undertaking engaged in mining-related activities, had voluntarily paid the entire tax amount before the issuance of the Show Cause Notice. The respondent's submission highlighted that the Department itself had acknowledged the payment in 2007 and requested clarification on the audit objections raised. The Superintendent of Service Tax had directed the respondent to pay the tax amount based on the audit findings to close the case. The Tribunal noted that there was no evidence of fraud, collusion, or willful misstatement to evade tax payment, leading to the conclusion that the penalty under Section 78 was not justified. However, the penalty under Section 77 for not making the application to the Superintendent was deemed appropriate.

The Tribunal modified the impugned order by upholding the penalty under Section 77 while waiving the penalty under Section 78. This waiver was done by invoking Section 80 of the Finance Act, 1994, as decided by the Commissioner(Appeals). The appeal by the appellant was partly allowed, and the cross objection was disposed of accordingly. The operative part of the order was pronounced in the open court, bringing clarity to the decision on the penalties imposed and waived under the relevant sections of the Finance Act, 1994.