2015 (1) TMI 1197 - AT - Service Tax

Penalty u/s 76, 77 & 78 - service tax paid before issuance of show cause notice - outward goods transportation services - Held that - As per the provisions of the section 73(3) of the Act, the show cause notice is not required to be issued when service tax along with interest has been paid by the assessee before issuance of show cause notice and there is no allegation against the assessee for fraud, collusion, willful misstatement, suppression of facts or having any malafide intention to not to pay any service tax. We have also gone through the show cause notice. In the show cause notice there is no specific allegations against the respondent that respondent had not paid by way of fraud, collusion, willful misstatement or suppress the material facts or was having any malafide intention of not to pay service tax. - although the Show cause notice was issued to the respondent which was not required to be issued as per section 73(3) of the Act. Therefore, we do not find any infirmity with the impugned order. Accordingly, the same is upheld and appeal filed by the revenue deserves no merit - Decided against Revenue.

Summary

Issues:
Appeal against dropped penalties under section 76, 77, and 78 of the Finance Act 1994.

Analysis:
The case involved an appeal by the revenue against penalties dropped by the Ld. Commissioner (A) under sections 76, 77, and 78 of the Finance Act 1994. The respondent had not paid service tax on outward goods transportation services for the period 01.04.2006 to 31.03.2007, which was revealed during an audit. The respondent paid the service tax and interest upon audit team's pointing out. Subsequently, a show cause notice was issued for appropriating the amount paid and imposing penalties. The Adjudication confirmed the demand and penalties, which the Ld. Commissioner (A) later set aside. The revenue contended that penalties should not have been waived under section 80 of the Act when the extended limitation period was invoked and liability admitted. The respondent argued they had a bona fide belief and were unaware of new provisions, thus entitled to benefit under section 73(3) as they paid the tax and interest without a show cause notice.

The Ld. AR argued that penalties should apply as the respondent admitted the demand within the extended period. He cited a decision to support that pre-deposition of duty before a show cause notice does not exempt penalties. On the other hand, the Ld. Counsel for the respondent claimed they were unaware of the new provisions and had a bona fide belief, justifying the waiver of penalties. The Ld. Commissioner (A) considered the respondent's lack of awareness and decided not to impose penalties under sections 76, 77, and 78 of the Act. The Tribunal examined section 73(3) of the Finance Act 1994, which exempts a show cause notice if the tax and interest are paid before its issuance, and no fraud or malafide intention is found.

The Tribunal found that the show cause notice was not required as the respondent had paid the tax and interest before its issuance, and no allegations of fraud or malafide intentions were made against them. Therefore, the Tribunal upheld the decision of the Ld. Commissioner (A) and dismissed the revenue's appeal, stating that no infirmity was found in the impugned order. The appeal lacked merit, and the decision was pronounced in the open court.