2016 (2) TMI 110 - AT - Service Tax

Levy of Interest and penalty - validity of the addendum issued after the date of order-in-original - telephone services - It was contended that When the amount of tax demanded is not payable there is no question of charging interest on delayed payment and no question of imposition of penalty. - Held that - the appellant is right in asserting that after the issuance of the Order-in-Original, the adjudicating authority became functus officio and therefore he could not have issued the addendum which essentially imposed penalty at least not without notice to it - appeal against the addendum dated 27.09.2001 allowed - Decided in favor of assessee.

Summary

Issues:
1. Validity of Order-in-Original dated 09.08.2001 and addendum dated 27.09.2001.
2. Authority to issue an addendum after the Order-in-Original.
3. Imposition of penalty without notice to the appellant.

Analysis:
1. The Order-in-Original dated 09.08.2001 clarified that service tax was not payable on certain billed amounts and directed the calculation of interest on delayed payment. The appellant contested the addendum issued by the commissioner, which imposed penalty and interest. The Tribunal noted that the appellant did not dispute the primary adjudication order. The Tribunal referred to the principle of functus officio, stating that the adjudicating authority could not issue an addendum imposing penalty without notice. Citing a relevant case, the Tribunal held that the penalty could not be imposed in such a manner. The appeal against the primary order was rejected, while the appeal against the addendum was allowed, setting it aside.

2. The appellant argued that the addendum issued after the Order-in-Original was invalid as the adjudicating authority had become functus officio. The Tribunal agreed with this contention, emphasizing that the penalty could not be imposed without notice to the appellant. The Tribunal referenced a previous case to support the principle that the authority loses jurisdiction after issuing an order. The Departmental Representative also acknowledged that the penalty could not have been imposed in the manner done through the addendum. Consequently, the Tribunal rejected the appeal against the primary order but allowed the appeal against the addendum, leading to its setting aside.

3. The Departmental Representative admitted that the addendum imposing penalty could not have been issued without notice to the appellant. The Tribunal concurred with this view, highlighting that the penalty imposition through the addendum was not procedurally correct. By applying the principle of functus officio and considering the lack of notice to the appellant, the Tribunal concluded that the penalty imposition was unjustified. As a result, the Tribunal set aside the addendum and disposed of the appeal in favor of the appellant-assessee.