2009 (3) TMI 617 - HC - Service Tax

Refund - Penalty - Counsel for the respondent has also relied on Circular published by the Department granting time for compliance with statutory provision in regard to payment of service tax - Interest is to be computed in accordance with the statutory provisions for the delay in payment form the due dated on which service tax is payable under the Act. If excess interest is paid, it is for the respondent to claim refund of interest in accordance with the procedure prescribed under the Rules and not for the Tribunal to consider the matter while disposing of the penalty appeal - Appeal is allowed

Summary

Issues: Liability to pay service tax, voluntary payment before penalty notice, cancellation of penalty by Tribunal, refund of interest, authority of Tribunal to discuss interest claim.

Liability to pay service tax: The respondent, who was liable to pay service tax, initially declined to remit the same. However, before a penalty notice was issued, the respondent voluntarily paid the service tax with interest. The first appellate authority sustained the penalty levied, but the Tribunal canceled the penalty considering the voluntary payment made by the respondent before the show cause notice was issued.

Cancellation of penalty by Tribunal: The High Court found no justification to interfere with the Tribunal's order canceling the penalty. The Court noted that even though the assessee had committed a default, they made the payment before the issuance of the show cause notice. The Tribunal's decision was upheld based on the voluntary payment made by the respondent.

Refund of interest: The respondent claimed entitlement to a refund of interest, citing a Circular published by the Department granting time for compliance with statutory provisions regarding the payment of service tax. However, the Court held that the Tribunal had no authority to discuss the respondent's claim for a refund of interest. The Court vacated the part of the Tribunal's order declaring the respondent's entitlement to a refund of interest, stating that interest is not connected with the penalty. The Court clarified that interest should be computed according to statutory provisions for the delay in payment from the due date on which service tax is payable under the Act. Any excess interest paid should be claimed by the respondent following the prescribed procedure under the Rules.

Authority of Tribunal to discuss interest claim: The Court emphasized that the Tribunal should not consider the matter of refund of interest while disposing of the penalty appeal. The Court clarified that if excess interest is paid, it is the respondent's responsibility to claim a refund of interest in accordance with the procedure set out in the Rules. The High Court allowed the appeal in part, specifically on the issue of the Tribunal's discussion regarding the respondent's claim for a refund of interest, and dismissed the appeal on the penalty question.