2009 (8) TMI 727 - AT - Service Tax

Demand of Service tax and interest waiver of service tax - paid prior to issue of SCN - suo motu by the assessee - order is set aside and the matter is remanded to the Commissioner Disposed of accordingly

Summary

Issues involved:
Challenge against penalty imposition under Sections 76, 77, and 78 of the Finance Act based on payment of service tax with interest; Interpretation of Section 73(3) of the Finance Act and the Central Board of Excise & Customs circular dated 3-10-2007; Entitlement for benefit under Section 80 of the Finance Act.

Analysis:

Issue 1: Challenge against penalty imposition under Sections 76, 77, and 78 of the Finance Act based on payment of service tax with interest:
The appellant contested the penalty imposition by challenging the show cause notice issued despite the payment of service tax along with interest. The appellant relied on Section 73(3) of the Finance Act and a circular by the Central Board of Excise & Customs dated 3-10-2007, which stated that payment of service tax with interest would conclude the proceedings. The appellant argued that there was no suppression as they had informed the Revenue about their activities and promptly paid the tax upon notification of additional requirements. The Commissioner (Appeals) did not consider the appellant's reliance on the circular, leading to the appeal.

Issue 2: Interpretation of Section 73(3) of the Finance Act and the Central Board of Excise & Customs circular dated 3-10-2007:
The appellant's case hinged on the interpretation of Section 73(3) of the Finance Act and the circular issued by the Central Board of Excise & Customs on 3-10-2007. The circular clarified that payment of service tax with interest prior to the show cause notice would conclude the proceedings. The Tribunal found that the Commissioner (Appeals) did not address this aspect in the order, leading to setting aside the impugned order and remanding the matter for reconsideration in light of the circular. The Tribunal emphasized the importance of following the circular's guidance in cases where service tax had been paid suo motu.

Issue 3: Entitlement for benefit under Section 80 of the Finance Act:
The Revenue contended that the appellant was not entitled to the benefit under Section 80 of the Finance Act, which the appellant had relied upon before the Commissioner (Appeals). Upon review, the Commissioner (Appeals) denied the benefit under Section 80, leading to the imposition of penalty. The Tribunal did not delve into this issue specifically but focused on the procedural aspect related to the circular and the payment of service tax with interest. The matter was remanded to the Commissioner (Appeals) for a fresh decision considering the circular's provisions and providing the appellants with a hearing opportunity.

In conclusion, the Tribunal's judgment revolved around the procedural adherence to the circular issued by the Central Board of Excise & Customs regarding the payment of service tax with interest and its impact on the conclusion of proceedings under the Finance Act. The case was remanded for a fresh decision based on the circular's guidelines, emphasizing the importance of following such directives in tax matters.