2013 (10) TMI 40 - AT - Service Tax

Demand beyond normal period of limitation - Whether waiver of penalty u/s 80 would mean that no demand can be confirmed beyond the normal period of limitation - Waiver of pre-deposit - Held that - provisions contained in Section 80 that the same talks about waiver of penalty under Sections 76, 77 and 78 of the Finance Act, 1994, if reasonable cause is shown by the appellant. The provision of Section 78 talks of the situations like fraud, wilful misstatement and suppression of facts etc. with intention to evade payment of duty. By virtue of the fact that Section 78 has been mentioned in Section 80 of the Finance Act, 1994, situation even in such a case does not prima facie mean that extended period will not be applicable where penalty imposed under Section 78 is waived under Section 80. Since the issue is debatable one and needs deeper consideration whether once the provisions of Section 80 are made application there will not be any case where extended period is invokable - Therefore, at the stay stage, the appellant has not made out a prima facie case for complete waiver of confirmed dues - stay granted partly.

Summary

Issues: Stay application against Order-in-Appeal under Section 85(4) - Interpretation of Sections 78 and 80 of the Finance Act, 1994 - Applicability of extended period for confirming demand

In this case, the appellant filed a stay application against Order-in-Appeal under Section 85(4) dated 27.05.2013. The appellant argued that the Commissioner (Appeals) granted the benefit of Section 80 of the Finance Act, 1994, setting aside penalties under Section 78, citing the judgment in the case of R.N. Singh vs. CCE, Allahabad. The appellant contended that once Section 80 is applied, no malafide can be attributed to the assessee, and the extended period for confirming demand cannot be invoked. On the other hand, the learned A.R. argued that while Section 80 allows for penalty waiver under Section 78, it does not automatically make the demand time-barred in all cases where Section 80 is applicable.

Upon hearing both sides and examining the case record, it was noted that Section 80 of the Finance Act, 1994 provides for the waiver of penalties under Sections 76, 77, and 78 if a reasonable cause is demonstrated by the appellant. Section 78 specifically addresses situations involving fraud, wilful misstatement, and suppression of facts to evade duty payment. The Tribunal observed that the mere mention of Section 78 in Section 80 does not categorically preclude the applicability of the extended period for confirming demand, even if penalties under Section 78 are waived under Section 80. The Tribunal acknowledged the debatable nature of the issue and the necessity for a more thorough consideration regarding the invocation of the extended period once Section 80 is invoked.

Consequently, the Tribunal found that the appellant had not established a prima facie case for the complete waiver of confirmed dues at the stay stage. Therefore, the appellant was directed to deposit Rs. 20,000 within eight weeks and report compliance by a specified date. The Deputy Registrar would verify the compliance and present the file before the bench for further orders. Subject to compliance, there would be a stay on the recovery of the remaining amounts until the appeal's disposal. The judgment was dictated and pronounced in court by Mr. H.K. Thakur.