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2011 (10) TMI 59 - AT - Service TaxSmall cable operator - demand of service tax with interest and penalty - Held that - before both the lower authorities, no claim for SSI exemption was made, even though the appellant had taken professional assistance after the department issued summon and Show Cause Notice. Nevertheless, the benefit of SSI exemption can be claimed even at this stage and in my opinion, at least for the purpose of penalty, this benefit has to be considered in the interest of justice. - Matter remanded back with a direction that f the appellant is eligible for SSI exemption, since the appellant is not contesting the demand of Service Tax and interest thereon, the penalties can be waived by invoking the provisions of Section 80 of Finance Act, 1994 and if the appellant is eligible for SSI exemption, no penalty shall be imposable, except penalty under Section 77 for not filing the returns.
Issues:
1. Service Tax demand for the period 01.10.03 to 31.10.05 with penalties under Sections 76, 77 & 78 of Finance Act, 1994 imposed. 2. Claim for Small Scale Industry (SSI) exemption. 3. Consideration of CENVAT Credit and penalty reduction. Analysis: Issue 1: Service Tax Demand and Penalties The appellant, a cable operator, did not contest the Service Tax and interest before lower authorities and continued this stance before the Tribunal. The appellant admitted to not paying Service Tax due to financial difficulties, leading to penalties being imposed. The appellant argued that due to financial constraints, they could not pay Service Tax and file returns. The appellant's representative highlighted the lack of intention to suppress facts or misdeclare, attributing the non-compliance to financial challenges. The Tribunal noted that the appellant did not claim SSI exemption earlier but could do so now. Considering the interest of justice, the matter was remanded to the original adjudicating authority to assess the eligibility for SSI benefit. If eligible, the Service Tax and interest paid would suffice, and penalties could be waived. The Tribunal also considered the appellant's CENVAT Credit of Rs.7,000, suggesting a reduction in penalty if the appellant is not eligible for SSI exemption. Issue 2: Claim for Small Scale Industry (SSI) Exemption The appellant sought the benefit of SSI exemption, which was not raised before the lower authorities despite professional assistance being sought after summon and Show Cause Notice. The Tribunal acknowledged that the benefit of SSI exemption could be claimed even at this stage. It emphasized that for the purpose of penalty, the eligibility for SSI benefit must be considered in the interest of justice. The Tribunal directed the original adjudicating authority to evaluate the appellant's eligibility for SSI exemption. If deemed eligible, penalties could be waived under Section 80 of the Finance Act, 1994, except for the penalty under Section 77 for not filing returns. Issue 3: Consideration of CENVAT Credit and Penalty Reduction The appellant's representative raised the issue of CENVAT Credit amounting to Rs.7,000, which was not taken into account when imposing penalties. The Tribunal deemed it appropriate to remand the matter to the original adjudicating authority to assess the appellant's eligibility for SSI benefit. If the appellant is ineligible, the authority should consider the CENVAT Credit claim and potentially reduce the penalty. It was emphasized that if the appellant qualifies for SSI exemption and does not contest the Service Tax demand and interest, penalties can be waived, with the exception of the penalty under Section 77 for failure to file returns. This comprehensive analysis of the judgment highlights the key issues addressed by the Tribunal and the considerations made regarding the Service Tax demand, SSI exemption claim, and penalty reduction based on the appellant's circumstances and eligibility for exemptions and credits.
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