2013 (1) TMI 604 - HC - Service Tax

Provisions of section 78 - Against an order of the Commissioner (A), the petitioner filed appeal before the Tribunal along with stay application seeking waiver of pre-deposit of the amount of service tax - Tribunal after hearing the parties, by the order directed the petitioner to deposit the entire amount of service tax, interest and penalty - Held that - The Tribunal was not justified in directing the petitioner to deposit the entire amount of penalties in addition to the service tax and interest. This court is of the view that impugned order passed by the Tribunal deserves to be modified to the extent the petitioner has been directed to deposit the entire amount of the penalties u/s 76 and 78. Tribunal s order of dismissing the appeal for non-compliance is hereby quashed and set aside. Order shall stand modified to the extent that instead of depositing the entire amount of penalties u/s 76 and 78, the petitioner shall deposit 25% of the penalty u/s 78.

Summary

Issues:
Challenge to orders passed by Customs, Excise and Service Tax Appellate Tribunal regarding deposit of service tax, interest, and penalties under the Finance Act, 1994.

Analysis:
The petitioner challenged the orders dated 10th January, 2012, and 20th March, 2012, passed by the Customs, Excise and Service Tax Appellate Tribunal (the Tribunal). The petitioner sought modification of the stay order, which was dismissed by the Tribunal. The Tribunal directed the petitioner to deposit the entire amount of service tax, interest, and penalties, leading to the filing of a writ petition challenging these orders. The Tribunal subsequently dismissed the appeal due to non-compliance, prompting an amendment to the petition. The petitioner argued that the Tribunal failed to consider the provisions of section 78 of the Act, specifically the first and fifth provisos, which would reduce the penalty amount payable. The petitioner contended that the Tribunal's insistence on full payment disregarded statutory provisions, depriving them of the benefit of the law.

On the other hand, the respondents opposed the petition, asserting that the Tribunal's discretion on pre-deposit should not be interfered with. After considering the arguments and reviewing the case record, the court found that the Tribunal erred in directing the petitioner to deposit the entire penalty amount under sections 76 and 78 of the Act. The court held that the Tribunal should have considered the provisions of section 78, particularly the first and fifth provisos, and modified the order accordingly. Consequently, the court allowed the petition to the extent that the order rejecting the modification application was quashed, and the order dated 10th January, 2012, was modified. Instead of depositing the full penalty amount, the petitioner was required to deposit only 25% of the penalty under section 78 of the Act. The order dismissing the appeal for non-compliance was also set aside, and the appeal was restored subject to the petitioner meeting the deposit requirements by a specified date. The court clarified that its decision was based on a prima facie opinion and did not indicate a stance on the merits of the case or the penalties levied under the Act. The Tribunal was instructed to proceed with the case on its merits without being influenced by the court's order.