2007 (10) TMI 30 - AT - Service Tax

Penalty Decisions on which Comm.(A) relied while setting aside penalty, have already been reversed by HC Deposition of duty before issue of SCN does not automatically waive penalty Since suppression of facts to evade duty has been proved, benefit of lesser penalty of 25% is not entitled

Summary

Issues:
Challenge to modification of penalties imposed under Sections 76, 77, and 78 of the Finance Act, 1994 by the Commissioner (Appeals-I) based on the deposit of Service tax before issuance of show cause notice.

Analysis:
1. The Revenue challenged the order modifying penalties imposed under Sections 76, 77, and 78 of the Finance Act, 1994. The Appellate Commissioner set aside the penalties, citing that no penalty can be imposed if the duty was paid before the show cause notice was issued. The Appellate Commissioner relied on the decision of the Larger Bench in CCE, Delhi-III Gurgaon v. Machino Montell Ltd. The Service tax amount due was not disputed, but penalties were contested.

2. The appellant did not deposit interest and penalty amounts as required by Section 78 of the Act, similar to Section 11AC of the Central Excise Act, 1944. Consequently, the appellant was not eligible for the reduced penalty of 25% of the Service tax as per the first proviso to Section 78.

3. The decision of the Larger Bench in CCE, Delhi-III Gurgaon v. Machino Montell Ltd. was overturned by the High Court of Punjab and Haryana in CCE v. Machino Montell Ltd. This reversal influenced the findings of the case, emphasizing that depositing duty before the show cause notice does not automatically waive penalties.

4. The delay in depositing the Service tax for 146 days led to penalties under Sections 76, 77, and 78 of the Act. The penalties were justified due to non-filing of returns, suppression of facts to evade tax, and the subsequent search by the department. The original authority reinstated the penalties, emphasizing that the Appellate Commissioner erred in setting them aside.

5. The Appellate Tribunal found no valid reason to overturn the penalties imposed on the respondent, as the penal provisions did not support such action. Consequently, the penalties were reinstated, and the order-in-original was upheld, leading to the allowance of the appeal against the modification of penalties.

This comprehensive analysis of the judgment highlights the key issues raised, the legal interpretations applied, and the final decision rendered by the Appellate Tribunal.