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2016 (6) TMI 74 - AT - Service TaxWaiver of penalty under Section 76 of the Finance Act, 1994 - Demand of Service tax and imposition of penalty under Section 76,77 and 78 - Business Auxiliary Service - Reverse charge mechanism - Commission paid to overseas agents - Waiver of penalty is pleaded as the penalty under Section 78 ibid has been imposed and for an option to pay 25% (reduced) mandatory penalty under Section 78 ibid as the option was not given at the lower levels. Held that - by following the law laid down by the Gujarat High Court in the case of CCE, Surat Vs. Rajeshree Dyg. & Ptg. Mills (P) Ltd. 2014 (9) TMI 291 - GUJARAT HIGH COURT held against the assessee which was again appealed by assessee in the Supreme Court reported in 2016 (5) TMI 130 - SUPREME COURT and the decision of Delhi High Court in the case of Pr. CST-II Vs. Top Security Ltd. 2015 (12) TMI 443 - DELHI HIGH COURT , the impugned order is upheld except for penalty under Section 76 ibid. - Decided partly in favour of appellant
Issues:
- Service tax demand confirmation along with interest - Imposition of penalties under Sections 76, 77, and 78 of the Finance Act, 1994 - Applicability of penalty under Sections 76 and 78 simultaneously - Waiver of penalty under Section 76 and option for reduced mandatory penalty under Section 78 - Judicial pronouncements regarding penalties under Sections 76 and 78 - Jurisdictional conflict between Delhi High Court and Gujarat High Court - Validity of Gujarat High Court judgment in light of subsequent Supreme Court decision Analysis: The judgment pertains to an appeal filed against the confirmation of a service tax demand of ?7,93,750 along with interest, based on the appellant's payment of commission to overseas agents without paying service tax under Business Auxiliary Service (BAS) under the reverse charge mechanism. Penalties under Sections 76, 77, and 78 of the Finance Act, 1994 were also imposed. The appellant conceded the demand and interest but sought waiver of penalty under Section 76, contending that the penalty under Section 78 had been imposed, and requested an option to pay the reduced mandatory penalty under Section 78, which was not provided by the lower authorities. The Departmental Representative argued that penalties under Sections 76 and 78 were imposable simultaneously during the relevant period. Reference was made to a Delhi High Court case, Pr. CST-II Vs. Top Security Ltd., which held that the option to pay a reduced mandatory penalty could not be extended at the CESTAT level. However, the appellant cited a CESTAT order in its own case where penalties under Sections 76 and 78 were not imposed concurrently, and an option for reduced mandatory penalty under Section 78 was given. The Tribunal considered the arguments and referred to judicial pronouncements, including a case involving Jubiliant Enpro (P) Ltd. Vs. CCE, Noida, where it was held that if a penalty under Section 78 had been imposed, penalty under Section 76 may not be justified. The Tribunal also noted that the appellant was not given the option for a reduced mandatory penalty under Section 78 by the lower authorities. Citing a Gujarat High Court case, Ratnamani Metals & Tubes, the Tribunal initially inclined to set aside the penalty under Section 76 and allow the reduced mandatory penalty under Section 78. However, a jurisdictional conflict arose between the Delhi High Court and Gujarat High Court judgments, leading to a discussion on the validity of the Gujarat High Court judgment in light of a subsequent Supreme Court decision. The Tribunal ultimately upheld the impugned order, setting aside the penalty under Section 76 while following the law laid down by the Delhi High Court and the subsequent Supreme Court decision, making the penalty under Section 76 inapplicable. In conclusion, the appeal was allowed only to the extent that the penalty under Section 76 was set aside, based on the conflicting judicial pronouncements and the subsequent Supreme Court decision, which rendered the Gujarat High Court judgment no longer applicable law.
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