2010 (8) TMI 572 - AT - Service Tax

Penalty - Assessee had paid the tax due before the issue of show cause notice and also paid interest after the original authority had confirmed the demand - The lower authorities did not record a finding that the failure to pay the impugned amount of service tax had arisen due to fraud, suppression of facts, willful mis-statement etc. on the part of the assessee - Therefore, the original authority had rightly held that the assessee was not liable to penalty under Sections 76 and 77 of the Act - The appellants on the strength of the judgment of the Hon ble High Court of Karnataka in CCE, Bangalore-II v. Sunitha Shetty (2004 -TMI - 170 - HIGH COURT (KARNATAKA)), that once the original authority had waived penalty imposable on the assessee exercising discretion conferred on him under Section 80 of the Act, the Revisionary Authority could not validly impose such penalties or enhance the penalty already imposed - Hence, the penalties imposed in the impugned order are therefore liable to be set aside.

Summary

Issues:
1. Imposition of penalties under Sections 76 and 77 of the Finance Act, 1994.
2. Validity of penalties imposed in the review proceedings initiated under Section 84 of the Act.
3. Application of case laws regarding penalty imposition when tax is paid before the issue of show cause notice.
4. Compliance with the two-year limitation period under Section 84(5) of the Finance Act, 1994.

Analysis:
1. The appellants were engaged in providing services classified under 'Business Auxiliary Service' during July 2003 to May 2004 but had not followed statutory formalities, including payment of tax. The original authority confirmed the demand of Service Tax and imposed interest but refrained from imposing penalties under Sections 76 and 77 of the Act. However, in review proceedings, the Commissioner imposed penalties of Rs. 100/- per day for the period the tax due remained unpaid under Section 76 and a penalty of Rs. 1,000 under Section 77.

2. The appellants sought waiver of penalties citing the decision of the Hon'ble High Court of Karnataka and various Tribunal judgments. They argued that penalties should not have been imposed as the tax was paid before the issue of show cause notice, and they had also participated in the amnesty scheme. The Tribunal noted that the penalties imposed were not justified, especially since there was no finding of suppression on the part of the appellants.

3. The appellants contended that the impugned order was passed after the expiry of two years from the date of the original authority's order, contrary to Section 84(5) of the Finance Act, 1994. The Tribunal examined the dates of the orders and found that the impugned order was indeed passed beyond the two-year limit, rendering it invalid and unsustainable.

4. The Tribunal considered the case laws cited by the appellants regarding penalty imposition and observed that the authorities had failed to establish fraud, suppression of facts, or willful misstatement by the assessee. Relying on the judgment of the Hon'ble High Court of Karnataka, the Tribunal concluded that the penalties imposed in the impugned order were not valid, and the Revisionary Authority could not enhance penalties already waived by the original authority. Consequently, the penalties were set aside, and the appeal was allowed.

In conclusion, the Tribunal found that the penalties imposed under Sections 76 and 77 were not justified, the impugned order was passed beyond the statutory limitation period, and the penalties were liable to be set aside based on legal precedents and lack of evidence of fraudulent conduct by the appellants.