2016 (10) TMI 1122 - AT - Service Tax

Penalty u/s 78 - security service - appellant deposited the entire amount of tax as demanded along with interest and penalty @25% of the tax - Held that - section 78 would be invoked in the case of suppression of facts with intent to evade payment of tax etc.. In the present case, the appellant is not disputing the demand of tax along with interest, which they have already deposited - The main contention of the appellant is that they are a small partnership firm and there was a bona fide belief that no tax is leviable thereon. The Adjudicating Authority have not invoked section 78 in respect of demand of Service Tax of ₹ 10,19,908/- and therefore he cannot impose penalty for the balance amount under section 78 of the Act. In any event, both the authorities below had not disputed the bona fide belief of the appellant. So, it is a fit case to invoke section 80 to waive the penalty imposed under section 78 of the Act. Appeal allowed - decided in favor of appellant.

Summary

Issues involved: Appeal against imposition of penalty under section 78 of the Finance Act, 1994.

Analysis:
1. Facts and Background: The appellant, a partnership firm providing security services, received a show cause notice for Service Tax demand for the period from 2001-02 to 2004-05. The appellant paid a calculated amount of tax after the notice, which was later recalculated by the Adjudicating Authority. The Authority confirmed the Service Tax and Education Cess along with interest and penalty equal to the tax amount. The appellant paid the demanded amount, filed an appeal before the Commissioner(Appeals), who rejected the appeal.

2. Imposition of Penalty under Section 78: The Adjudicating Authority imposed a penalty under section 78 of the Finance Act, 1994, for suppression of facts with intent to evade tax. However, the appellant did not dispute the tax demand and had paid a significant amount after the show cause notice. The appellant argued a bona fide belief that no tax was leviable, which was not disputed by the authorities. The Adjudicating Authority did not invoke section 78 for the amount already paid by the appellant. Therefore, it was deemed inappropriate to impose a penalty under section 78 for the balance amount.

3. Application of Section 80 to Waive Penalty: The Tribunal found that the Adjudicating Authority's decision to impose a penalty under section 78 was not justified, especially considering the appellant's genuine belief and the partial payment made promptly after the notice. The Tribunal held that since both lower authorities did not dispute the appellant's bona fide belief, it was a suitable case to invoke section 80 to waive the penalty imposed under section 78.

4. Conclusion: The Tribunal set aside the imposition of penalty under section 78, thereby allowing the appeal filed by the appellant. The decision was based on the lack of justification for penalty imposition, the appellant's genuine belief, and the non-disputed partial payment made promptly after the show cause notice.

This judgment highlights the importance of considering the circumstances and beliefs of the taxpayer while imposing penalties under tax laws, emphasizing the need for a fair and reasonable approach in tax adjudication.