2015 (12) TMI 412 - AT - Service Tax

Imposition of penalty - whether concession in penalty to the extent of 25% of the tax liability discharged before the appellate authority disposed the appeal is deniable when such concession was allowed by adjudication order - Held that - Department has not verified as to on whom the adjudication order was served. Mere dispatch of the order may not result in inference that it was served on the appellant. It should be addressed to the right addressee. There is no finding to that effect. Had the department verified the address of the addressee from envelope containing the order and caused an inquiry, truth would have been discovered to reach to a conclusion that the envelope containing the adjudication order was served on the assessee. In absence of any inquiry, appellant gets benefit of doubt of the service of the order upon it not earlier to 21.12.2009. When the order came to the knowledge of assessee, upon service, the crucial date for it to discharge penalty was 21.12.2009 and 30 days therefrom was to be reckoned. - to reduce litigation and also considering discharge of tax liability which is not in dispute by Revenue, penalty is reduced to 25% of tax liability which is also said to have been discharged by the appellant and not controverted by Revenue - Decided in favour of assessee.

Issues:
1. Contention regarding the service of the adjudication order and the subsequent discharge of penalty.
2. Dispute over the concession in penalty granted by the adjudication order and its discharge timeline.
3. Verification of service of the adjudication order and the authority's power to extend concession in penalty.
4. Lack of inquiry by the department regarding the service of the order and its impact on the appellant's liability.
5. Reduction of penalty based on the material facts and evidence on record.

Analysis:
1. The primary issue in this case revolves around the contention raised by the appellant regarding the service of the adjudication order. The appellant argued that the order granting concession was not served on them on the specified date, leading to a delay in their response. They obtained a copy later and exercised the option to discharge penalty by a certain date. The adjudicating authority acknowledged the partial discharge of the demand before the show-cause notice was issued and imposed a penalty under section 78 of the Finance Act, 1994, despite granting a concession in tax liability.

2. The core dispute centers on whether the concession in penalty, as allowed by the adjudication order, should be denied due to the timeline of its discharge. The appellant maintained that they discharged the tax liability and the concessional penalty within the stipulated time frame, while the department contended that the penalty was not discharged on time based on the dispatch date of the adjudication order.

3. The judgment highlights the authority's power to extend concessions in penalty based on the appellant's actions and bonafide intentions. The appellate authority, in this case, had the discretion to consider the circumstances, especially the substantial payment made before the issuance of the show-cause notice, and extend the concession period for penalty payment.

4. A crucial aspect of the case was the lack of verification by the department regarding the service of the adjudication order on the appellant. The judgment emphasized that mere dispatch of the order does not imply proper service, and the department should have conducted an inquiry to confirm the delivery to the correct recipient. The absence of such verification led to a benefit of doubt in favor of the appellant regarding the service date of the order.

5. Ultimately, considering the evidence presented and to reduce further litigation, the penalty was reduced to 25% of the tax liability, which the appellant had reportedly discharged. The decision was based on the material facts on record, including the acknowledgment of tax liability discharge by the appellant and the lack of dispute from the revenue department. The appeal was allowed, and any consequential relief was directed to follow as per the law.

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