2017 (2) TMI 441 - AT - Service Tax

Imposition of penalty u/s 76 of FA, 1994 and the general penalty imposed under Sub Section (2) of Section 77 - late payment of service tax and late filing of returns - Rule 7 (c) as well as the Transitory Provisions u/s 78 (B) introduced by amendment w.e.f. 14.05.2015 - Held that - From the Transitory Provision it is clear that no penalty can be imposed u/s 76 because the SCN in this case is issued prior to the amendment - the penalty u/s 76 is unjustified and the same requires to be set aside. Penalty imposed under sub Section (2) of Section 77 - Held that - The second proviso to Rule, 7(C) states that when the late fee is paid along with the returns the proceedings in this respect shall be deemed to be concluded. It is not disputed that appellant had filed returns along with the late fee and also paid the service tax along with interest - penalty under sub Section (2) of Section 77 is unwarranted. Appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Penalty imposed under Section 76 of Finance Act, 1994 and Sub Section (2) of Section 77 for late payment of service tax and late filing of returns.

Analysis:
1. Penalty under Section 76:
- The appellant challenged the penalty under Section 76 citing the Transitory Provision under Section 78(B) of the Finance Act, 1994. The appellant argued that as the Show Cause Notice was issued before the amendment, no penalty could be imposed under Section 76.
- The Tribunal analyzed the relevant provisions and held that as per the Transitory Provisions, no penalty could be imposed under Section 76 due to the timing of the Show Cause Notice. Therefore, the penalty under Section 76 was deemed unjustified and set aside.

2. Penalty under Sub Section (2) of Section 77:
- The appellant also contested the penalty imposed under Sub Section (2) of Section 77 by referring to Rule 7(C) of the Service Tax Rules, 1994. The appellant argued that the late fee paid along with the returns should conclude the proceedings, as per the second proviso to Rule 7(C).
- The Tribunal agreed with the appellant, noting that the appellant had filed returns with the late fee, paid the service tax, and interest. Consequently, the imposition of penalty under Sub Section (2) of Section 77 was deemed unwarranted and set aside.

3. Conclusion:
- The Tribunal set aside the impugned order in its entirety, allowing the appeal with any consequential reliefs. The judgment highlighted the importance of considering relevant provisions and timing in determining the validity of penalties for late payment of service tax and late filing of returns. The detailed analysis of the legal arguments presented by both parties led to a clear decision in favor of the appellant, emphasizing compliance with procedural requirements and legal provisions in tax matters.