2009 (1) TMI 197 - AT - Service Tax

Penalty for non payment of service tax Service Tax along with Interest was paid after issuance of SCN - Commissioner (Appeals) has upheld the demand of service tax but reduced the penalty to Rs. 60,000 considering the explanation of the respondents that failure to pay service tax emanated from lack of knowledge of service tax laws and procedures show-cause notice has proposed penalties under three sections 76, 77 and 78 - the penalty apparently has been imposed under section 76 only (though the orders says that it has been imposed under sections 76, 77 and 78) as it is Rs.100 per day subject to maximum of service tax evaded being Rs. 3,65,940 and this is total consonance with the provisions of section 76 wherein penalty cannot exceed the amount of service tax not paid. It appears that no penalty has been imposed under section 78 where the minimum penalty is equal to service tax not paid Revenue appeal against the order of comm.(A) rejected.

Summary

Issues:
1. Failure of respondents to respond to hearing notices.
2. Non-payment of service tax by respondents.
3. Imposition and reduction of penalty by Commissioner (Appeals).
4. Interpretation of penalty provisions under sections 76, 77, and 78 of the Finance Act, 1994.

Issue 1: Failure of respondents to respond to hearing notices:
The appeal was filed by the revenue after the respondents failed to respond to hearing notices despite multiple attempts. The notices were delivered through SDR, and an acknowledgment receipt was submitted by the respondents. The appeal was decided based on records and submissions made by the ld. DR due to the non-appearance of the respondents.

Issue 2: Non-payment of service tax by respondents:
The respondents provided Clearing & Forwarding Agent services without registering or paying service tax from 1-10-1999 to 31-12-2004. The Preventive Officers detected the non-compliance, leading to a show-cause notice requiring payment of service tax, interest, and penalties under sections 76, 77, and 78 of the Finance Act, 1994. The Dy. Commissioner confirmed the service tax amount, which was paid along with interest. The penalty imposed was challenged, leading to an appeal.

Issue 3: Imposition and reduction of penalty by Commissioner (Appeals):
The Commissioner (Appeals) upheld the demand for service tax but reduced the penalty from Rs. 3,65,940 to Rs. 60,000, considering the respondents' lack of knowledge of service tax laws as an explanation for non-payment. The revenue appealed against this decision, arguing that the reduction of penalty was incorrect under section 78 of the Finance Act, 1994.

Issue 4: Interpretation of penalty provisions under sections 76, 77, and 78:
The revenue contended that the penalty imposed under section 76 could not be reduced below the amount of service tax not paid. However, the Tribunal clarified that the penalty was imposed under section 76 only, not section 78 as contended by the revenue. Since no penalty was imposed under section 78, the appeal challenging the penalty quantum under section 78 was dismissed due to lack of merit.

This judgment highlights the significance of compliance with hearing notices and the consequences of non-payment of service tax. It also clarifies the interpretation of penalty provisions under different sections of the Finance Act, emphasizing the importance of accurate imposition and challenge of penalties. The decision underscores the necessity of understanding and adhering to tax laws to avoid penalties and legal consequences.