2012 (9) TMI 736 - AT - Service Tax

Penalty - commissioner in review proceedings, penalty under Section 76 has been revised and confirmed @ Rs. 200/- per day or the default period or 2% of the service tax per month whichever is higher against the appellants. Held that - During the period April 2002 to September 2002, penalty under Section 76 of the Finance Act is leviable @ Rs.100 per day which may extend up to Rs. 200/- during that period - adjudicating authority has exercised his option and imposed the penalty @ Rs.100 per day - Commissioner cannot go beyond the provisions applicable at the time of occurrence of offence - appeal is allowed

Summary

Issues:
Penalty imposition under Section 76 of the Finance Act.

Analysis:
The appellant was subjected to a service tax demand for providing Management consultant services to the government of India from April 2002 to September 2002. Initially, the appellant did not pay the service tax, but upon receiving a show-cause notice, they admitted the liability and paid the service tax along with interest and penalty under Section 76 of the Finance Act, 1994. The penalty was imposed at Rs. 100 per day for the defaulting period. Subsequently, the Commissioner reviewed the case and revised the penalty to Rs. 200 per day or 2% of the service tax per month, whichever is higher. This revision led to the appeal before the tribunal.

Upon detailed consideration, the tribunal found that the appeal could be disposed of without the need for pre-deposit. The main issue was the imposition of penalty under Section 76 of the Finance Act. The tribunal emphasized that penalties should be based on the law applicable at the time of the offense. During the relevant period of April 2002 to September 2002, the penalty under Section 76 was set at Rs. 100 per day, extendable up to Rs. 200. The adjudicating authority had correctly applied the penalty at Rs. 100 per day. Therefore, the tribunal concluded that the Commissioner could not exceed the penalty provisions in force at the time of the offense. Consequently, the tribunal set aside the Commissioner's decision, ruling in favor of the appellant and providing any consequential relief deemed necessary.

In summary, the judgment focused on upholding the principle that penalties should align with the legal provisions in effect at the time of the offense. The tribunal's decision favored the appellant by reverting the penalty amount back to the original rate of Rs. 100 per day as per the applicable law during the period in question.