2017 (6) TMI 431 - AT - Service Tax

Penalty u/s 76, 77 and 78 of FA - GTA service - abatement on the gross freight - case of Revenue is that the Commissioner does not have the power to waive penalties since the instruction of the Board in Circular dated 17.12.2004 excluded cases involving fraud, collusion, suppression of facts or willful mis-statement or contravention of the provisions of service tax with intend to evade payment of service tax - Held that - the Commissioner in the facts and circumstances of the case has rightly given the benefit of Section 80 and has not imposed penalties un/s 76, 77 & 78 because the respondent had paid the service tax along with interest before issue of SCN - also, the levy was newly introduced during the relevant period involved in the present case and even the department was not aware of the statutory provisions and hence, the department has demanded the entire amount in the SCN without giving the benefit of abatement as provided under Notification. The benefit under Section 80 extended as the service tax along with interest is paid before issue of SCN - penalty rightly set aside - appeal dismissed - decided against Revenue.

Summary

Issues:
Appeal against dropping of penalties under Section 76, 77, and 78 for service tax liability payment along with interest.

Analysis:
The case involved an appeal by the Revenue against the dropping of penalties by the Commissioner under Section 76, 77, and 78, as the assessee had paid the service tax liability along with interest. The respondent, a partnership firm engaged in mining activities, was found to have not applied for registration or paid service tax on freight charges incurred for transporting iron ore via trucks. A show-cause notice was issued demanding service tax, which the respondent paid along with interest. The Commissioner held the respondent liable for service tax under GTA Service, with an abatement of 75% resulting in a payable amount of &8377; 39,83,436/-. The Commissioner waived penalties based on a Board's Circular.

The Revenue contended that penalties should not have been waived as the extended period was invoked due to alleged suppression of facts. The respondent argued that the levy on GTA was new, and they were not aware of their liability initially. They paid the tax upon becoming aware, before the show-cause notice. The respondent claimed that the department failed to provide the benefit of abatement as per Notification, indicating a lack of awareness of statutory provisions. They argued that their non-payment was a genuine mistake due to the new levy.

The Tribunal found that the Commissioner rightly applied Section 80 to waive penalties since the tax and interest were paid before the show-cause notice. The Tribunal noted that the levy was new, and even the department was not fully aware of the provisions, leading to the demand for the entire amount without abatement. Citing relevant case laws, the Tribunal upheld the decision, stating that there was no error in the Commissioner's order. The appeal by the Revenue was dismissed, affirming the dropping of penalties.

In conclusion, the Tribunal upheld the Commissioner's decision to drop penalties under Section 76, 77, and 78, as the respondent had paid the service tax liability along with interest before the show-cause notice was issued. The Tribunal considered the newness of the levy and lack of awareness of statutory provisions by both the respondent and the department in determining that penalties should be waived. The decision was supported by relevant case laws, leading to the dismissal of the Revenue's appeal.