2008 (3) TMI 136 - AT - Service Tax

Enhancement of penalty by commissioner in exercise of the revisional power under Section 84 - Business Auxiliary Service - appellant having been absolved of the tax liability, it could not be saddled with any penalty and therefore, on this ground alone, the impugned order of the Commissioner is fit to be set aside

Summary

Issues:
1. Appeal against the Commissioner's order enhancing penalty.
2. Assessment of taxable services and imposition of penalties.
3. Tribunal's decision on the service tax liability.
4. Commissioner's suo motu enhancement of penalty.
5. Applicability of penalty after Tribunal's decision on tax liability.

Analysis:

1. The appellant appealed against the Commissioner's order enhancing the penalty from Rs.5000 to Rs.21,153 under Section 84 of the Finance Act, 1994. The Commissioner had exercised revisional power based on the Assistant Commissioner's order assessing taxable services and imposing penalties under Sections 76 and 77 of the Act.

2. The Assistant Commissioner's order dated 28.2.2005 assessed the taxable services provided by the appellant at Rs.2,64,415, determining the service tax liability at Rs.21,153. Penalties of Rs.5000 under Section 76 and Rs.500 under Section 77 were imposed. The Commissioner (Appeals) upheld the tax liability but reduced the penalty to Rs.1,500 under Section 76, waiving the penalty under Section 77. The appellant then approached the Tribunal in multiple appeal numbers.

3. The Tribunal, in its order, held that the service provided by the appellant did not fall under the category of business auxiliary service, absolving them of the service tax liability. Consequently, the Tribunal allowed the appeals of the appellant, setting aside the impugned orders.

4. Meanwhile, the Commissioner of Central Excise, suo motu, enhanced the penalty from Rs.5000 to Rs.21,153 under the impugned order after the Tribunal's decision. The appellant contended that since the Tribunal had absolved them of tax liability, no penalty could be imposed on them.

5. The Tribunal, in its analysis, acknowledged that the appeal involved multiple issues but focused on the limited submission by the appellant. It held that since the appellant had been absolved of tax liability by the Tribunal's decision, imposing any penalty on them would not be justified. Therefore, the Tribunal set aside the impugned order of the Commissioner, allowing the appeal in favor of the appellant.