2014 (1) TMI 209 - AT - Service Tax

Waiver of penalty u/s 80 as imposed u/s 76 and 78 - Interest u/s 75 - Held that - Imposing penalty equivalent to service tax paid belatedly in this case will amount to putting the appellant who paid tax before issue of SCN and interest before adjudication at a more disadvantageous position as compared to an assessee who would not have filed paid any tax and did not file any return. In latter type of cases penalty under section 78 would be applicable and the assessee gets concession in paying 25% of duty as penalty if such payment is made promptly - No benefit would accrue to an assesse who makes such payment if this argument is accepted. C.B.E. & C. vide letter F. No. 137/167/2006-CX-4, dated 3-10-2007 has clarified that section 73 (3) cannot be interpreted in the way it is canvassed now by Revenue - there was some confusion about tax liability - appellant paid tax along with interest once the matter was clear to them and their customers appellant has made out sufficient cause for waiver of penalty under section 80 - Decided in favour of assessee.

Summary

Issues:
1. Delay in payment of service tax and interest.
2. Imposition of penalty under sections 76 and 80 of the Finance Act, 1994.

Detailed Analysis:
Issue 1: The appellant was constructing residential complexes from April 2007 to December 2008 and faced delays in paying service tax and interest during this period. The department issued a show cause notice for recovery of interest and imposing a penalty. The appellant contested the delay period and interest amount, arguing that they paid the service tax before the notice and the interest amount was subsequently paid. The Order-in-Original confirmed the interest demand and imposed a penalty under section 76. The appellant appealed to the Commissioner (Appeals) but did not receive relief, leading to the current appeal before the Tribunal.

Issue 2: The appellant's counsel argued that the payment of service tax before the notice and the subsequent payment of interest should fulfill the requirements of section 73(3) of the Finance Act, 1994. They contended that the penalty under section 76 should be set aside as the interest payment was made post-notice. Additionally, the appellant sought waiver of penalty under section 80 due to confusion regarding tax liability on construction services and difficulties in collecting tax from property buyers. The Revenue argued that penalty under section 76 was justified, citing a previous tribunal decision, and that confusion about tax liability was not a valid reason for penalty waiver under section 80.

Analysis Conclusion: The Tribunal considered both parties' arguments and noted that imposing a penalty equivalent to the belatedly paid service tax would disadvantage the appellant compared to non-compliant assesses. The Tribunal highlighted that the Revenue's interpretation could lead to unfair outcomes and referred to a clarification by C.B.E. & C. regarding section 73(3). Ultimately, the Tribunal found merit in the appellant's argument about confusion regarding tax liability and the timely payment once clarity was achieved. Consequently, the Tribunal waived the penalty under section 80, allowing the appeal in favor of the appellant.