2011 (1) TMI 721 - HC - Service Tax

Penalty - assessee was carrying on the business of providing taxi services - once the departmental officers informed him that any person owning or operating even with one vehicle would have to pay the service tax, they registered themselves during March, 2003 and obtained a registration on 26-3-2003 - there is no willful default on payment of such amount and hence, they are not liable to pay the penalty and requested for waiver of the penalty imposed - it is clear, that the assessee came to be constituted in April 2002 as a partnership firm - But once the authorities brought it to their notice, that the Act is applicable even to the person who owns one taxi, promptly they registered under the Act and from that day onwards, they were paying the service tax - the authorities in exercise of their discretion under Section 80 of the Act, which is conferred on them, held that the cause shown is a reasonable cause and waived the penalty, which is purely a question of fact - Appeal is dismissed

Summary

Issues:
Challenge to order imposing penalty for non-payment of Service Tax within stipulated time.

Detailed Analysis:

Issue 1: Challenge to order imposing penalty for non-payment of Service Tax within stipulated time
The appeal by the revenue challenges the Tribunal's order setting aside the penalty imposed by the Revisional Authority for non-payment of Service Tax within the stipulated time. The assessee, engaged in providing taxi services, initially did not register or pay tax due to confusion regarding the applicability of service tax laws. However, upon being informed by departmental officers, they registered under the Act, paid the due tax, and promptly paid the interest as well. The Original Authority, satisfied with the explanation, confirmed the demand for Service Tax and Interest, declining to impose any penalty under Sections 76, 77, or 78 of the Finance Act, 1994, invoking Section 80 instead.

Issue 2: Review of the order by the Commissioner
The Commissioner, exercising suo motu revisional power, reviewed the Original Authority's order and concluded that the assessee's explanation did not constitute a reasonable cause for non-compliance with the provisions, thus not attracting Section 80. Consequently, the Commissioner directed the payment of penalty. The assessee, aggrieved by this decision, appealed to the tribunal, which, after examining the material on record, held that the assessee, acting in good faith due to confusion, had no intention to evade duty. Relying on various judgments, the tribunal found the Original Authority's decision of not imposing a penalty justified and set aside the Revisional Authority's order, restoring the Original Authority's decision.

Issue 3: Justification for waiving the penalty
The facts revealed that the assessee, formed in April 2002 as a partnership firm, believed that only those owning 50 taxis were liable to pay service tax. Upon clarification by authorities that even a single taxi owner is liable, the assessee promptly registered and began paying the service tax. Despite a delay in payment leading to interest liability, the assessee demonstrated no intent to evade duty or any malafide motive. The authorities, utilizing their discretion under Section 80, considered the cause shown as reasonable and waived the penalty. The Court found no substantial question of law warranting consideration in the appeal, dismissing it accordingly.

In conclusion, the Court upheld the tribunal's decision, emphasizing the assessee's good faith actions, prompt compliance upon clarification, and lack of intent to evade duty as justifications for waiving the penalty.