2011 (10) TMI 75 - AT - Service Tax

Penalty under Section 76 & 78 - Appellant contended that service tax has been paid but the appellant is facing penalty under Section 76 & 78 of the Finance Act, 1994 - Neither the Adjudicating Authority nor the Appellate Authority has found presence of essential element of Section 78 & 76 - Held that In absence of mala fide of the appellant penalty under Section 78 shall not surviv - Considering the prayer of the appellant matter is sent back to the Adjudicating Authority to consider prayer of the appellant under Section 80 of Finance Act, 1994 - decided in favour of applicant

Summary

Issues:
Levy of penalty under Section 76 & 78 of the Finance Act, 1994.

Analysis:
The judgment by the Appellate Tribunal CESTAT, New Delhi, involved a case where the appellant had paid service tax but was facing penalties under Section 76 and 78 of the Finance Act, 1994. The penalty under Section 78 amounted to Rs. 98,168, while the penalty under Section 76 was on a per day basis, up to a maximum of Rs. 98,168. The appellant claimed there was no suppression to cause revenue loss. The appellate authority had already reduced the penalty. After hearing both sides and reviewing the records, the tribunal noted that the issue was centered around the levy of penalties. With the agreement of both parties, the stay application and appeal were disposed of through a common order.

The tribunal found that neither the Adjudicating Authority nor the Appellate Authority had identified the essential elements of Section 78 and 76 of the Finance Act, 1994. In the absence of any malice from the appellant, the penalty under Section 78 was deemed not applicable, and the appeal on that count was allowed. Regarding the penalty under Section 76, the appellant argued they were entitled to the benefit of Section 80 of the Finance Act, 1994, as they had a reasonable cause that prevented them from fulfilling their liability. Considering this argument, the tribunal decided to send the matter back to the Adjudicating Authority to evaluate the appellant's plea under Section 80 in relation to the penalty that could be imposed under Section 76. Consequently, the stay application was disposed of, and the appeal was partially allowed by remanding, waiving the penalty to the extent indicated above. The judgment was dictated and pronounced in open court.