2013 (12) TMI 1433 - AT - Service Tax

Penalty u/s 76 & 78 - Commissioner set aside penalty - Held that - Section 80 of the Finance Act, 1994 provides notwithstanding any contained in Sections 76, 77 or 78 of the Act no penalty is imposable on the assessee for any failure referred to in the said provisions if the assessee proves that there was a reasonable cause of the said failure - Respondent had paid the service tax of Rs.1, 14, 33, 254/- for the period in dispute and there was a short payment of only Rs.15, 41, 427/- That also had been paid before the adjudication order. Appellant also paid the interest. In these circumstances we find merit in the contention of the Respondents that there was a calculation mistake and there was no intention on the part of the Respondents to evade payment of service tax - Decided against Revenue.

Summary

Issues:
Appeal against penalties imposed under Section 76 and 78 of the Finance Act, 1994 for suppression of fact with intent to evade payment of tax and late payment of service tax.

Analysis:
The Revenue filed an appeal against the order of the Commissioner (Appeals) setting aside penalties under Section 76 and 78 of the Finance Act, 1994. The Revenue contended that there was a clear suppression of fact with intent to evade tax and that the Respondents were liable for penalties due to late payment of service tax. The Respondents argued that they had paid the service tax for the disputed period, with a shortfall of Rs. 15,41,427, which was promptly paid before the adjudication order. They also paid interest for delayed payment, attributing the shortfall to a calculation mistake and denying any intention to evade tax.

The Tribunal considered Section 80 of the Finance Act, 1994, which states that no penalty is imposable on the assessee if a reasonable cause for the failure is proven. In this case, the Respondents had paid most of the service tax due, with only a minor shortfall of Rs. 15,41,427, which was rectified before the adjudication order. The Respondents also paid interest for the delay. The Tribunal found merit in the Respondents' argument that the shortfall was due to a calculation mistake and that there was no intention to evade tax. Consequently, the appeal filed by the Revenue was dismissed.

In conclusion, the Tribunal ruled in favor of the Respondents, holding that the penalties imposed under Section 76 and 78 of the Finance Act, 1994 were not justified in this case. The Tribunal found that the shortfall in service tax payment was due to a calculation error and not intentional evasion, leading to the dismissal of the Revenue's appeal.