2014 (1) TMI 1610 - AT - Service Tax

Penalty u/s 76 - Delay in payment of service tax - Suppression of facts - Held that - it is difficult to know on what basis the penalty amount of Rs.4 ,58,772 /- has been arrived at. Copy of the worksheet said to have been attached to the show-cause notice has not been submitted by the appellant at all and unfortunately during the course of hearing also the worksheet was not available - during the course of audit of the accounts of the assessee and reconciliation of ST-3 returns with P & L Accounts, it was noticed that appellant has received an amount of Rs.10 ,66,938 /- from M/s. Bharati Airtel during the year 2006-07 on which service tax was not paid - If service tax was collected from M/s. Bharati Airtel and it was not shown in the ST-3 returns and it was found out on going through the P & L accounts of the assessee and comparing the same with ST returns, in my opinion, it would amount to suppression of facts and violation of provisions of law. However, there were no clear observations on these aspects - Therefore, it is extremely difficult to come to the right conclusion since the facts are not clear, the legal position is not clear. Therefore the impugned order is set aside and the matter is remanded to the original authority.

Summary

Issues:
Imposition of penalty under Section 76 of Finance Act, 1994 for non-payment of service tax despite subsequent payment by the appellant before the issue of show-cause notice.

Analysis:
The appellant was engaged in providing various services and had not paid the service tax due to the department for the period from April 2007 to March 2010. Proceedings were initiated for imposing a penalty under Section 76 of the Finance Act, 1994. The appellant had paid the entire amount of service tax with interest either upon departmental notice or voluntarily by filing returns. The lower authorities found the penalty under Section 76 to be imposable, leading to the appeal.

The appellant argued that as per Section 73(3) of the Finance Act, once the service tax with interest is paid before the issue of a show-cause notice, no such notice could be issued. They contended that without allegations of suppression or mis-declaration, the notice could not have been issued. However, the department contended that since the appellant collected service tax from customers but did not remit it, the penalty was justified under Section 76.

The Tribunal noted that the penalty amount was not clearly calculated in the show-cause notice, making it unclear on what basis it was arrived at. Without a worksheet to support the calculation, it was challenging to determine the exact default amount. The Tribunal emphasized that if the service charges were reflected in the returns and subsequently paid with interest before any departmental intervention, penalty under Section 76 would not apply as per Section 73(3). The Tribunal highlighted the need for a clear analysis of facts and adherence to legal provisions in the adjudication process.

The Tribunal found indications of suppression of facts in the appellant's actions, especially regarding non-payment of service tax despite collection. However, due to unclear observations and lack of clarity on whether the amounts were considered for penalty calculation, a proper conclusion could not be reached. Consequently, the Tribunal set aside the impugned order and remanded the matter to the original authority for a fresh adjudication based on the show-cause notice, relevant instructions, and legal precedents.

In conclusion, the Tribunal directed the adjudicating authority to independently reassess the matter based on the show-cause notice and accompanying worksheet, ensuring compliance with legal requirements for a fair and thorough adjudication process.