9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2015 (11) TMI 614 - AT - Service TaxPenalty u/s 76 & 78 - Business auxiliary services - Held that - Commissioner has dropped the penalty under Section 78 of the Finance Act while reducing the confirmed demand. I find that while confirming the penalty under Section 76 of Finance Act, 1994, the Ld. Commissioner (Appeals) has observed that since the appellant had agreed to the short payment of service tax, therefore, the penalty under Section 76 of Finance Act, 1994 is justified. The Ld. Advocate assailing the impugned Order contended that since the appellant had discharged their liability before issuance of show cause notice, therefore, in view of the specific provisions contained under Section 73(3) of the Finance Act, 1994, no show cause notice for the said liability should have been issued to them. It is conceded by the Appellant that this plea has not been raised before the Ld. Commissioner (Appeals) and advanced for the first time before this Tribunal. In the interest of justice, I am of the view that the appellant be given a fair chance to raise the said plea before the Ld. Commissioner (Appeals) and the Ld. Commissioner should accordingly consider the same and decide the issue of imposition of penalty under Sec.76 of Finance Act,1994, accordingly. - Appeal disposed of.
Issues: Appeal against demand notice for service tax, imposition of penalty under Section 76, applicability of Section 73(3) of Finance Act, 1994.
Analysis: 1. Demand Notice and Penalty Imposition: The appellant was issued a demand notice for alleged short payment/non-payment of service tax for providing taxable services. The entire demand was confirmed, and penalties were imposed under Section 78 and Section 76 of the Finance Act, 1994. The Ld. Commissioner (Appeals) modified the order, reducing the demand to the admitted liability and confirming the penalty under Section 76. The appellant challenged the penalty under Section 76, arguing that they had discharged the tax liability before the issuance of the show cause notice, citing specific provisions under Section 73(3) of the Finance Act, 1994. 2. Applicability of Section 73(3): The appellant contended that since they had paid the tax liability before the show cause notice was issued, no notice should have been served, invoking Section 73(3) of the Finance Act, 1994. The Ld. Advocate referred to relevant judgments to support this argument. The Revenue argued that penalties under Section 76 and Section 78 are distinct, and the Ld. Commissioner (Appeals) correctly confirmed the penalty under Section 76 without considering the Section 73(3) argument, as it was not raised before them. 3. Judgment and Modification: The Tribunal noted that the appellant did not raise the Section 73(3) argument before the Ld. Commissioner (Appeals) but presented it for the first time during the appeal. In the interest of justice, the Tribunal modified the order, allowing the appellant to raise the Section 73(3) plea before the Ld. Commissioner (Appeals) for reconsideration of the penalty under Section 76. The Tribunal emphasized providing a fair hearing opportunity to the appellant for this matter. Consequently, the impugned order was adjusted to address this new argument and ensure procedural fairness in the adjudication process. In conclusion, the judgment focused on the procedural aspect of raising legal arguments at the appropriate stages of appeal and ensuring fairness in the decision-making process by allowing the appellant to present a crucial argument before the relevant authority.
|
