2011 (2) TMI 21 - AT - Service Tax

Payment of service tax interest and 25% of the amount as penalty on issue of SCN - Proviso to Section 78 clearly provides for payment of concessional penalty if the duty and interest determined by the authorities paid within 30 days - penalties under Section 78 has been imposed and upheld by the Commissioner (A) to the extent of 25% no justification for a separate penalty under Section 76

Summary

Issues:
Confirmation of service tax demand, imposition of penalties under various sections, applicability of concessional penalty, restoration of penalties under Section 76 & 77, interpretation of Board's instructions, justification for separate penalties, extension of concessional penalty option.

Analysis:
The original authority confirmed a service tax demand and imposed penalties under Sections 76, 77, and 78 of the Finance Act, 1994. The Commissioner (A) upheld the demand and interest but set aside the penalties under Sections 76 & 77, reducing the penalty under Section 78 to 25% of the original amount. The appellant appealed against this decision, arguing for the restoration of penalties under Sections 76 & 77 and challenging the applicability of the concessional penalty under Section 78.

The department relied on Board instructions and argued that the respondents did not pay the 25% penalty within 30 days, thus forfeiting the right to concessional penalty. The appellant contended that the Commissioner (A) correctly set aside penalties under Sections 76 & 77, emphasizing that payment of duty and interest before the show cause notice entitled them to the concessional penalty under Section 78.

The Tribunal analyzed the Board's instructions and relevant legal provisions. It noted that the original authority did not provide the option for reduced penalty payment, as required by the proviso to Section 78. The Tribunal cited a Delhi High Court case to support the Commissioner (A)'s decision to allow the concessional penalty option. Additionally, since penalties under Section 78 were already imposed and upheld, the Tribunal found no justification for separate penalties under Section 76, citing precedent from a Bangalore Tribunal case.

Ultimately, the Tribunal rejected the appeal, affirming the Commissioner (A)'s decision regarding the penalties and the applicability of the concessional penalty under Section 78. The judgment emphasized adherence to legal provisions, including the requirement for authorities to provide the option for reduced penalty payment within the specified timeframe.