2016 (9) TMI 81 - AT - Central Excise

Waiver of penalty - imposed under Section 78 of the Finance Act, 1994 - invokation of extended period of limitation - service tax payment for the month of February 2007 was paid in the year 2011 - Held that - it is found that appellant duly discharged the entire tax liability along with interest as appropriated in the adjudication order. The invocation of longer period is invoked only in respect of short payment of tax pertaining to the month of February 2007. The plea of bonafide of appellant merits consideration when the entire tax liability along with interest stands discharged. Therefore, the quantum of penalty imposed under Section 78 is reduced to 25% - Decided partly in favour of appellant

Summary

Issues: Waiver of penalty under Section 78 of the Finance Act, 1994.

Analysis:
1. The appeal involved the waiver of penalty imposed under Section 78 of the Finance Act, 1994. The tax liability with interest was discharged by the appellant as confirmed in the impugned order. The Commissioner (Appeals) set aside the penalty under Section 77 but upheld the penalty under Section 78, leading to the appeal.

2. The Managing Director of the appellant argued that the penalty under Section 78 was imposed invoking a longer period due to the delayed service tax payment for February 2007. The appellant had filed all necessary returns and records, paid the tax with interest, and there was no intention to evade payment. The appellant was eligible for abatement, and the department had miscalculated the tax liability for February 2007. The show cause notice was also considered time-barred for the disputed periods. The appellant requested the penalty under Section 78 to be set aside.

3. On the other hand, the respondent-revenue supported the impugned order, upholding the penalty under Section 78.

4. After considering both arguments and reviewing the records, the Judicial Member found that the appellant had discharged the entire tax liability with interest as per the adjudication order. The longer period was invoked only for the short payment of tax in February 2007. Given the bonafide actions of the appellant and the full discharge of tax liability, the penalty under Section 78 was reduced to 25% from the original amount. The appeal was partly allowed with this modification in the impugned order.

Conclusion: The appeal regarding the waiver of penalty under Section 78 of the Finance Act, 1994 was partly allowed, with the penalty amount being reduced to 25% of the original imposed penalty.