2008 (7) TMI 212 - AT - Service Tax

Penalty - bona fide belief by assessee with regard to the category under which they were required to pay the service tax - reasonable and bona fide belief in not depositing the tax - service tax was paid before the issue of SCN along with interest - in terms of section 80, no penalty is imposable in such cases in view of decision of tribunal in the case of Majestic Mobikes (P.) Ltd., imposition of penalties in the Review Order and OIO is set aside appeal by assessee is allowed

Summary

Issues: Appeal against setting aside imposition of penalty under sections 76, 77, and 78 of the Finance Act based on reasonable cause for non-compliance with section 80.

Analysis:
1. Issue of Dropping Penalty: The appeal arose from the Revisionary Authority's order setting aside the Assistant Commissioner's decision to drop the imposition of penalty under sections 76, 77, and 78 of the Finance Act. The Assistant Commissioner, in his Order-in-Original, considered the confusion faced by the assessee as a reasonable cause for failure to pay service tax on time and decided to waive the penalties. However, the Revisionary Authority disagreed with this discretion, citing a previous High Court ruling where no reasonable cause was found for dropping penalties. The Revisionary Authority did not accept the argument that the service tax was paid with interest before the show-cause notice was issued as a valid reason for dropping the penalty.

2. Precedents and Legal Arguments: The appellant's counsel argued that the High Court's ruling was not applicable in this case, as the Original Authority had valid reasons for dropping the penalty, which were not considered by the Revisionary Authority. Reference was made to judgments by the High Courts of Karnataka and Bombay, where the exercise of discretion under section 80 of the Finance Act was upheld, and penalties were set aside. The counsel also highlighted a detailed judgment by the Bench in a similar case where the Revisionary Authority's decision to impose penalties was overturned, emphasizing that the issue was covered in the appellant's favor.

3. Judicial Decision: After considering the submissions, the Judicial Member noted that the appellants had paid the service tax with interest before the show-cause notice, indicating no intention to evade duty. The confusion faced by the assessee regarding the service tax payment was deemed a reasonable cause for non-compliance. Referring to a previous judgment by the same Bench in a similar case, where penalties were set aside due to the exercise of discretion by the Original Authority, the Judicial Member decided to follow the same precedent. Consequently, the impugned order was set aside, and the appeal was allowed with consequential relief.