2016 (9) TMI 893 - AT - Service Tax

Imposition of penalty - Section 77 and 78 of the Finance Act, 1994 - service tax liability with interest discharged before issuance of show-cause notice - whether appellant is required to discharge the service tax for the period beyond five years from the date of show-cause notice - Held that - it is found that the show cause notice was issued on 23.04.2013. Provisions of Section 73(4A) were inserted by Finance Act, 2011 w.e.f. 8.4.2011. The point raised by the appellant is a question of law as if the provisions of Section 73(4A) are applied in this case, the conclusion may have been different; as also the point of demand is for the period beyond five years. Since both these points were not raised before adjudicating authority we deem it fit to remand the matter back to adjudicating authority to reconsider the issue afresh. - Appeal disposed of by way of remand

Summary

Issues:
1. Liability for penalty under Section 77 and 78 of the Finance Act, 1994 for discharging service tax liability with interest before show-cause notice.
2. Requirement to discharge service tax for the period beyond five years from the date of show-cause notice.

Analysis:
1. The appeal addressed the issue of whether the appellant should be penalized under Sections 77 and 78 of the Finance Act, 1994, for discharging the service tax liability with interest before the issuance of the show-cause notice. The appellant's counsel argued that the service tax liability and interest were promptly settled upon identification by the audit party. Additionally, it was contended that any penalty should align with the provisions of Section 73(4A) of the Finance Act, 1944. The counsel highlighted that the demand for tax beyond five years from the show-cause notice was inaccurately confirmed. As these aspects were not raised during the initial adjudication, the counsel requested a remand for fresh consideration.

2. The second issue revolved around the necessity to discharge service tax for a period exceeding five years from the show-cause notice. The Additional Commissioner contended that the appellant had collected service tax from customers but failed to deposit it in the Government treasury. Moreover, it was emphasized that the matters concerning Section 73(4A) and the demand for tax beyond five years were not previously raised before the lower authority. Following a thorough evaluation of both parties' submissions, the Tribunal acknowledged that the show-cause notice was issued on a specific date. Notably, the provisions of Section 73(4A) were introduced at a later date. The Tribunal recognized that the points raised by the appellant's counsel constituted legal questions that could impact the case outcome significantly. Since these critical points were omitted during the initial adjudication, the Tribunal decided to remand the case to the adjudicating authority for a fresh review.

In conclusion, the Tribunal set aside the impugned order and remitted the matter back to the adjudicating authority for a reconsideration of the issues in adherence to the principles of natural justice. The appellant was granted the opportunity to present any supporting evidence during the subsequent proceedings. The appeal was disposed of by way of remand, without expressing any opinion on the case's merits.