2011 (1) TMI 562 - AT - Service Tax

Demand with interest & penalty - waiver of penalty u/s 80 - The authority below on analysis of materials on records has held that though there was to some extent suppression of facts, the assessee had immediately cleared the tax liability upon being pointed out - The main reason given by the Adjudicating Authority for invoking Section 80 of the Finance Act, 1994 is that the assessee cooperated fully during the investigation and also paid up the tax to be paid immediately, once their failure was pointed out - The very nature of the entry relating to Business Auxiliary Service and the large number of disputes that arose regarding the scope of entry clearly show that there was some confusion in the minds of prospective assesses about the scope of this entry - Revenue appeal dismissed.

Summary

Issues: Appeal against order on penalty under Section 78 of the Finance Act, 1994.

The judgment involves an appeal against an order passed by the Commissioner, Service Tax, New Delhi, confirming a demand of Rs.1,08,54,872 for a specific period and ordering payment of interest and penalties under Sections 76 and 77 of the Finance Act, 1994. The challenge in the appeal is limited to the issue of penalty under Section 78. The Commissioner refrained from imposing the penalty under Section 78, citing reasonable cause for non-imposition based on the assessee's cooperation with the department and immediate payment upon being informed about the tax liability. The appellate tribunal found that the authority was empowered under Section 80 to waive the penalty under Section 78 if sufficient cause is disclosed by the assessee. The tribunal upheld the decision of the lower authority, noting that although there was some suppression of facts, the assessee promptly cleared the tax liability upon being notified and cooperated with the investigation. The tribunal found no grounds for interference with the impugned order, as the discretion was exercised in favor of the assessee based on the peculiar facts of the case.

The judgment further discusses the invocation of Section 80 of the Finance Act, 1994, which states that no penalty shall be imposed if the assessee proves reasonable cause for the failure. The Adjudicating Authority invoked Section 80 based on the assessee's full cooperation during the investigation and immediate payment of the tax upon notification of the failure. The tribunal agreed with the revenue's argument that cooperation after the commencement of an inquiry should not be a sufficient reason to invoke Section 80. However, considering the nature of the tax liability under the Business Auxiliary Service category and the confusion surrounding the entry, the tribunal found that there were sufficient reasons for the assessee's failure to pay tax, warranting relief under Section 80. Despite rejecting the assessee's arguments regarding exemption eligibility and the nature of services provided, the tribunal concluded that the case did not merit interference with the adjudicating authority's decision to waive the penalty under Section 78.

In conclusion, the appeals were dismissed, affirming the decision to waive the penalty under Section 78 of the Finance Act, 1994, based on the reasonable cause shown by the assessee and the specific circumstances of the case.