2010 (9) TMI 328 - HC - Service Tax

Penalty - minimum penalty under Section 76 and 78 could be lawfully reduced or set aside when inclusion of service charges in the taxable value is not under dispute - respondent has not been able to show how penalty less than minimum can be imposed if mens rea exists - matter has been remanded to adjudicating authority without a specific finding either way on existence of mens rea - appeal is disposed of.

Summary

Issues:
Reduction of penalty under Section 76 and 78 in a tax dispute.

Analysis:
The case involved an appeal under Section 35-G of the Central Excise Act, 1944 against an order passed by the Customs, Excise & Service Tax Appellate Tribunal, New Delhi. The main question raised was whether the minimum penalty under Section 76 and 78 could be lawfully reduced or set aside when the inclusion of service charges in the taxable value was not under dispute. The assessee, a service provider, was issued a show cause notice alleging suppression of turnover of taxable service. The adjudicating authority passed an order creating demand and imposing penalties under Section 76 and 78, which were upheld on appeal. However, the Tribunal remanded the matter to determine the claim of the assessee for abatement as per an exemption notification. The penalty under Section 76 was reduced to Rs. 25,000, and the penalty under Section 78 was set aside.

The revenue contended that there is no provision for the reduction of penalty, and if a case for penalty is made out, it has to be at the minimum level. On the other hand, the respondent's counsel failed to demonstrate how a penalty less than the minimum could be imposed when mens rea exists. The Tribunal's decision to reduce the penalty to Rs. 25,000 was challenged as not being in accordance with the law. The Tribunal had remanded the matter without a specific finding on the existence of mens rea, leading to the conclusion that the penalty issue should have been left open until a final decision on taxability was reached. Therefore, the High Court directed that the question of the penalty's applicability should be left open for determination by the adjudicating authority based on its final findings, instead of remanding the matter back to the Tribunal for a fresh decision.

In conclusion, the High Court disposed of the appeal by directing that the issue of penalty be reconsidered by the adjudicating authority in accordance with the law and based on its final findings on the taxability aspect.