2014 (7) TMI 977 - AT - Service Tax

Waiver of penalty u/s 80 - penalty u/s 77 - penalty under Section 76 & 78 were waived already - Assessee already paid tax but amount was not appropriated - Held that - merely because the Commissioner did not appropriate the amount, it cannot be said that the amount has not been realized by the Government or has not gone into consolidated fund of Government of India - if an assessee is able to show that he has paid the amount into Government treasury and produces copies of the challans and in the absence of a finding to the contrary taking a view that challans are forged or bogus or refund has been claimed subsequently and received, in such cases we have to take a view that assessee has paid the amount whether it is appropriated by the adjudicating authority or not - what is required to be shown is that the amount has been paid and just because an appropriation has not been made and an officer fails to do this, we cannot take a view against the assessee especially in the absence of an appeal filed by the Revenue - Decided in favour of assessee.

Issues:
Delay condonation in filing appeal, deposit of service tax amount, waiver of penalty under different sections, verification of input tax credit, appropriating the amount paid, remand to original authority, cum tax benefit, setting aside penalty, crucial issues raised by learned AR.

Delay Condonation in Filing Appeal:
The appellants sought condonation of a 31-day delay in filing the appeal due to seeking modification in the impugned order. The Tribunal found the reasons for delay valid and acceptable, thus condoning the delay.

Deposit of Service Tax Amount:
The appellants claimed to have deposited the entire service tax amount with interest and an extra amount. However, the respondent disputed this claim, stating that only a partial amount was deposited. The Tribunal examined the evidence provided by both parties and concluded that the appellants had indeed paid the entire service tax amount, including interest, leaving no balance to be paid.

Waiver of Penalty under Different Sections:
The appellants requested the waiver of penalty under Section 77, similar to penalties under Sections 76 & 78 that were waived invoking Section 80 of the Finance Act, 1994. The Tribunal considered the arguments presented by both parties and decided to set aside the penalty under Section 77.

Verification of Input Tax Credit:
The respondent argued that the input tax credit claimed by the appellants was not valid due to lack of verification of documents. The Tribunal discussed the necessity of verifying input tax credit and the admissibility of CENVAT credit, emphasizing the importance of proper documentation and verification processes.

Appropriating the Amount Paid:
There was a dispute regarding the appropriation of the amount paid by the appellants. The Tribunal clarified that if an assessee can prove payment to the government treasury with supporting documents, it should be considered paid, even if not appropriated by the adjudicating authority.

Remand to Original Authority:
The respondent requested a remand to the original authority for verifying payment details and the admissibility of CENVAT credit. However, the Tribunal declined this request, emphasizing the importance of considering payments made by the assessee based on evidence provided.

Cum Tax Benefit and Setting Aside Penalty:
The Tribunal noted that the cum tax benefit was not extended to the appellants, indicating that they had paid more tax than due. Consequently, the penalty under Section 77 was set aside, and the appeal was allowed.

Crucial Issues Raised by Learned AR:
The Tribunal addressed the crucial issues raised by the learned AR, including the necessity of appropriation of paid amounts, the sufficiency of the Commissioner's observation on payment, the validity of challans as proof of payment, and the impact of an adjudicating authority's failure to record a contrary finding on payment.

In conclusion, the Tribunal allowed the appeal, set aside the penalty imposed on the appellant, and upheld the amount paid towards service tax and interest as not contested. The decision aimed to prevent further litigation and provide clarity on crucial issues raised during the proceedings.

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