2011 (9) TMI 501 - HC - Service Tax

Levy of Interest - Held That - Once there is delay in payment of service tax interest is payable.Finding that interest is not payable is erroneous. Penalty - Imposed prior to Sub Section (3) of Section 73 - Tax and interest paid before issue of show cause notice - Held That - Circular dated 20-10-2010 prohibiting the revenue from preferring an appeal where the tax effect is less than Rs. 2 lakhs. comes into effect prior to 1.11.10. Circular giving benefit to assessee can be applied retrospectively.

Summary

Issues:
1. Challenge to Tribunal's order setting aside levy of interest and penalty.
2. Interpretation of provisions related to waiver of penalty.
3. Application of circular prohibiting revenue from appealing for tax amounts less than Rs. 2 lakhs.
4. Decision on interest component and enforcement of liability against the assessee.

Analysis:

1. The High Court heard an appeal by the revenue challenging the Tribunal's decision to set aside the levy of interest and penalty for a period from July 2000 to October 2003. The Court noted that interest on delayed payment of service tax is compensatory in nature, as established by the Apex Court. Therefore, the finding that interest was not payable was deemed erroneous, and the Court set aside this finding.

2. Regarding the penalty, it was imposed before the introduction of a specific provision. The Court emphasized that the mere payment of tax and interest before the show cause notice does not automatically waive the penalty. However, Section 80 allows for the consideration of sufficient cause for non-payment within the stipulated time. In this case, the assessee had paid the tax and interest before the notice and provided reasons for the delay, which the Court found to be a sufficient cause.

3. The Court referred to a circular dated 20-10-2010, which restricted the revenue from appealing for amounts less than Rs. 2 lakhs. Although the circular was effective from 1-11-2010, the Court applied a precedent stating that beneficial circulars should be enforced retrospectively. As the circular favored the assessee, the Court applied it retrospectively, granting the benefit. The interest amount in question was minimal, and it had already been paid and refunded following the Tribunal's order.

4. Despite setting aside the Tribunal's order on interest payment, the Court decided not to enforce any liability against the assessee considering the circumstances. Therefore, the matter regarding the interest payment was left unresolved to prevent any further liability on the assessee based on the aforementioned considerations.