2014 (8) TMI 476 - AT - Service Tax

Levy of Penalty - Lower Adjudicating Authority set aside partial demand - But commissioner exercised revisional authority and imposed penalty - Held that - Lower Adjudicating Authority confirmed the demand and imposed penalty of equal amount under Section 78 of the Finance Act 1994 and gave them option to pay penalty of 25% in the order in Revision. However he did not impose any penalty under Section 76. Further ld. Commissioner in his order in Revision has imposed a penalty under Section 76 of Finance Act 1994. Undisputedly ld. Commr. (Appeals) vide his order dated 1-6-2012 has set aside the total demand. The Department did not produce any evidence challenging the aforesaid order-in-appeal. Once the demand itself has been set aside the penalty is not warranted in this case. Decided in favour of assessee.

Summary

Issues:
1. Imposition of penalty under Section 76 by the Commissioner in a Service Tax case.
2. Challenge against the confirmation of demand and penalty imposition.
3. Applicability of penalty when the demand itself has been set aside.

Analysis:
1. The appeal was filed against the Revision Order imposing a penalty under Section 76 of the Finance Act, 1994. The appellant, a Service Tax registrant, was alleged to have not paid Service Tax amounting to Rs. 2,66,333. The Lower Adjudicating Authority confirmed a demand of Rs. 31,298 along with interest and imposed a penalty under Section 78, offering an option to pay a reduced penalty of 25%. The Commissioner, in the Revision Order, invoked powers under Section 76 and imposed a penalty from the due date of payment till the actual payment date, not exceeding the Service Tax amount payable.

2. The appellant challenged the confirmation of the demand of Rs. 31,298. They argued that since the Commissioner (Appeals) had dropped the demand in a separate appeal, the penalty should not be imposed. They relied on a Larger Bench decision to support their contention. The appellant contended that if the demand itself does not stand, then the penalty should not be applicable.

3. The Tribunal noted that the Lower Adjudicating Authority confirmed the demand and imposed a penalty under Section 78 but did not apply any penalty under Section 76. However, the Commissioner, in the Revision Order, imposed a penalty under Section 76. The Commissioner (Appeals) had set aside the total demand in a separate order, which was not challenged by the Department. The Tribunal held that once the demand was set aside, the penalty was not justified. Consequently, the Revision Order imposing the penalty under Section 76 was set aside, and the appeal was allowed.

In conclusion, the Tribunal found that the penalty under Section 76 was not warranted when the demand itself had been set aside by the Commissioner (Appeals). The judgment emphasized the importance of aligning penalty imposition with the status of the underlying demand in Service Tax cases, ultimately ruling in favor of the appellant and setting aside the penalty imposed under Section 76.