2017 (4) TMI 853 - AT - Service Tax

Invocation of section 73(4) of FA, 1994 - Levy of penalty - case of appellant is that the provisions of section 73(3) of FA, 1994 is squarely applicable to them, that with the insertion of Explanation 2 therein, the imposition of penalty is not warranted, that w.e.f. 10th May 2008 penalties u/s 76 and section 78 were mutually exclusive, and that section 80 of FA, 1994 should have been invoked - Held that - the adjudicating authority has failed to record any evidence to demonstrate that there has been suppression with intent to evade tax and with the ingredients for imposition of penalty being conspicuously absent, there is no scope for recourse to section 73 (4) of Finance Act, 1994 to issue notice for confirmation of tax and for imposition of penalty - there was every reason to resort to section 73(3) of FA, 1994 to stop further proceedings consequent upon the payment of tax and interest in full - penalties set aside - appeal allowed - decided in favor of assessee.

Summary

Issues:
1. Tax liability confirmation and penalties under Finance Act, 1994.
2. Applicability of exclusion provisions of section 73(4) and contention regarding section 73(3).
3. Mutual exclusivity of penalties under section 76 and section 78.
4. Invocation of section 80 of Finance Act, 1994.
5. Suppression of facts with intent to evade tax.
6. Judicial settlement on tax levy under 'reverse charge' and absence of evidence for intent to evade tax.
7. Bar on proceedings under section 73 when tax and interest paid in full.
8. Imposition of penalties and their justification.

Analysis:

1. The appeal involved challenging an order confirming tax liability, interest, and penalties under the Finance Act, 1994, related to services procured between specific dates. The appellant had paid the tax dues with interest before the notice leading to the impugned order.

2. The impugned order invoked exclusion provisions of section 73(4) based on alleged suppression to evade tax. The appellant contended that section 73(3) should apply, and penalties were not warranted, especially after the insertion of Explanation 2.

3. The appellant argued for the mutual exclusivity of penalties under sections 76 and 78, emphasizing the need to invoke section 80 of the Finance Act, 1994.

4. The Authorized Representative relied on precedents to support the imposition of penalties due to non-disclosure of tax liability, emphasizing the consequences of suppression with intent to evade tax.

5. The appellant referenced decisions to support their case, highlighting the importance of prior tax payments and the legal implications regarding penalty liabilities.

6. The Tribunal found a lack of evidence demonstrating intent to evade tax, especially in the context of tax levy under 'reverse charge.' The judgment emphasized the need for clear justification before invoking penalty provisions.

7. A circular was noted, barring proceedings under section 73 when tax and interest were fully paid, indicating a legal limitation on further actions in such cases.

8. Ultimately, the Tribunal set aside the imposition of penalties, emphasizing the need to follow section 73(3) to halt proceedings after full payment of tax and interest, highlighting the absence of grounds for penalties in this instance.