2017 (1) TMI 169 - AT - Service Tax

Valuation - inclusion of freight charges in assessable value - sale of yarn - Held that - It is discussed in the order in detail that appellant has adopted this method of showing reduced taxable value during the earlier periods also. The act of the appellant is definitely suppression of facts with intent to evade payment of tax. Therefore the Show Cause Notice issued invoking extended period as well as the equal amount of penalty imposed under Section 78 are correct and proper - penalty upheld - appeal dismissed - decided against assessee.

Summary

Issues:
Challenge to order confirming service tax, interest, and penalty under Section 78 while setting aside penalty under Section 76.

Detailed Analysis:
The appellant challenged the order passed by the Commissioner (Appeals) upholding the confirmation of service tax, interest, and penalty under Section 78 but setting aside the penalty under Section 76. The Department discovered that the appellants were not paying service tax on freight charges and requested details. The taxable value was determined to be &8377; 1,11,91,404/- with a tax liability of &8377; 11,87,373/- for the period from April 2007 to March 2011. A Show Cause Notice was issued proposing the demand of service tax, interest, and penalties under various sections of the Finance Act, 1994. The appellants paid the demanded amounts but contested the penalties imposed. The adjudicating authority confirmed the demand and penalties, including an equal amount of penalty under Section 78, with an option for reduced penalty if paid within 30 days.

The Commissioner (Appeals) upheld the demand and penalties, except for the penalty under Section 76, which was set aside. The appellant, not contesting the service tax demand, focused on challenging the penalties. The appellant argued that the imposition of an equal amount of penalty under Section 78 was harsh, considering the timely payments made for certain periods and the belated payments for others. The Department contended that the penalty was justified due to the appellant's willful suppression of facts to evade tax payment. The Tribunal heard both sides and noted the appellant's inconsistent tax payments and deliberate reduction of taxable values to lower tax liabilities.

The Tribunal found the appellant's actions amounted to suppression of facts with intent to evade tax payment. The Show Cause Notice was issued invoking an extended period under the Finance Act, 1994. The Tribunal upheld the imposition of an equal amount of penalty under Section 78, considering the appellant's conduct. The appellant's argument regarding a payment for an earlier period was addressed, and the confirmed demand was adjusted accordingly. The Tribunal dismissed the appeal, sustaining the impugned order. The judgment was pronounced in open court on 13.12.16.