2014 (4) TMI 62 - AT - Service Tax

Penalty u/s 78 - Commissioner set aside penalty - Held that - whatever service ax would have been paid would have been taken as credit, if paid in time. Therefore, the respondents are entitled for the benefit of Section 80 of the Finance Act, 1994. Therefore, I do not find any infirmity in the impugned order - Decided against Revenue.

Summary

Issues: Appeal against setting aside penalty under Section 78 of the Finance Act, 1994.

In this judgment by the Appellate Tribunal CESTAT MUMBAI, the issue at hand was the appeal by the revenue against the impugned order where the penalty under Section 78 of the Finance Act, 1994 was set aside by the Commissioner (Appeals). The respondent had availed Goods Transport Agency service during a specific period but failed to pay the service tax as required. The Adjudicating Authority confirmed the demand along with interest and penalty under Section 78 due to the respondent's intention not to pay on time. However, the Commissioner (Appeals) dropped the penalty, leading to the revenue's appeal.

The revenue argued that since the respondent had not paid the service tax, the mandatory penalty under Section 78 should be imposed based on a decision of the Hon'ble Apex Court. On the other hand, the respondent's representative contended that they would have taken credit immediately if the tax was paid on time, but due to late payment, they incurred interest. Additionally, they claimed that being new to the service tax provisions as a service recipient, they should be granted the benefit of Section 80.

After hearing both sides, the Tribunal upheld the impugned order, agreeing with the respondent's counsel that had the service tax been paid on time, it would have been taken as credit. Therefore, the respondents were deemed entitled to the benefit of Section 80 of the Finance Act, 1994. Consequently, the appeal of the revenue was dismissed, and the impugned order setting aside the penalty under Section 78 was upheld.