2012 (7) TMI 78 - AT - Service Tax

Penalty u/s 76 - appellant has already paid the full amount and interest as well as penalty u/s 78 - Held that - Considering the approach adopted by the appellant this is a case where even penalty under Section 78 was not payable, even then the appellant paid 25% of service tax towards penalty so that unnecessary litigation is avoided and dispute does not arise and thereby paid of all the dues resulting from the adjudication order passed by the Additional Commissioner this is a fit case for waiver of penalty under Section 80 - as a confusion in the minds of the operators of service stations up to 31.10.04 as to whether service tax was payable on this service or not it and after the amendment of the law on 10.09.04, the service tax was being paid regularly by the appellant it cannot be held to be deliberate defiance - in fvaour of assessee.

Summary

Issues:
1. Imposition of penalty under Section 76 of Finance Act, 1994 by the Commissioner after the Additional Commissioner's order.
2. Appellant's request for waiver of penalty under Section 80 of Finance Act, 1994 and arguments regarding the confusion over service tax liability.

Analysis:
1. The judgment involves the issue of penalty imposition under Section 76 of the Finance Act, 1994. The Commissioner proposed a revision of the order passed by the Additional Commissioner, contending that penalty under Section 76 should have been imposed in addition to the penalty under Section 78. The appellant had paid the service tax, interest, and 25% of the penalty under Section 78 promptly upon being informed of the liability. The Tribunal considered the facts and records and decided that the issue of penalty under Section 76 can be finalized without the need for pre-deposit, as the appellant had already paid all dues resulting from the adjudication order.

2. The second issue revolves around the appellant's plea for waiver of penalty under Section 80 of the Finance Act, 1994, and the argument regarding confusion over service tax liability. The appellant contended that they had paid the service tax promptly upon being informed, even though they believed they were not liable prior to a certain period due to confusion. The appellant demonstrated a cooperative approach by paying the service tax, interest, and a portion of the penalty voluntarily to avoid prolonged litigation. The Tribunal considered various decisions and the appellant's actions, including the prompt payment of dues and the absence of a challenge to the penalty, in determining that the appellant acted in good faith to comply with the tax obligations. Consequently, the Tribunal granted the appellant's request for waiver of the penalty imposed under Section 76 of the Finance Act, 1994, invoking the provisions of Section 80.

In conclusion, the judgment addresses the issues of penalty imposition under different sections of the Finance Act, 1994, and the appellant's request for waiver based on their compliance, good faith actions, and the confusion surrounding the service tax liability. The Tribunal found in favor of the appellant, setting aside the penalty under Section 76, emphasizing the appellant's cooperation, prompt payment of dues, and intention to avoid unnecessary litigation.