2017 (9) TMI 422 - AT - Service Tax

Penalty u/s 76, 77 and 78 - payment of tax with interest before issuance of SCN - Held that - appellant did not disclose service tax liability to the department at the relevant time, accordingly they have suppressed the facts. Whether simultaneous penalty can be imposed under Section 76 and 78 during the relevant period? - Held that - the issue has been considered in various judgments and finally it was held in the in case of BCCI Vs CST Mumbai-1, 2014 (9) TMI 598 - CESTAT MUMBAI , where it was held that penalty under Section 76 ad 78 can be imposed simultaneously. As regard the penalty under Section 77, the penalty of ₹ 5000/- was rightly imposed on the appellant as they have not submitted ST-3 returns correctly at the relevant time. As regard the submission of the Ld. Counsel regarding the option of 25% penalty not given by the adjudicating authority, we find that adjudicating authority must give option in the impugned order for 25% penalty. This issue has been considered by the Board Circular No. 208/07/2008-CX-6 dated 22-5-2008 and clarified that the adjudicating authority must give an option of reduced penalty of 25% penalty in the adjudicating order. Appeal allowed - decided partly in favor of appellant.

Summary

Issues:
1. Imposition of Service Tax demand and interest.
2. Appropriation of the amount paid.
3. Recovery of interest.
4. Imposition of penalties under Sections 76, 77, and 78.
5. Contention regarding penalties by the appellant.
6. Arguments by the Revenue.
7. Decision on penalties by the Tribunal.

The judgment involved the appellant, engaged in providing Manpower Recruitment or Supply Agency Service and Security Agency Service, facing an order confirming a Service Tax demand of ?51,59,813 under Section 73(2) of the Finance Act, 1994. The order also directed the appropriation of the amount paid by the appellant, recovery of interest, and imposition of penalties under Sections 76, 77, and 78. The appellant did not contest the Service Tax liability and interest but challenged the penalties imposed by the adjudicating authority. The appellant argued that penalties under Sections 76 and 78 could not be imposed simultaneously as they are exclusive for different circumstances, citing relevant case laws. The appellant contended that since they paid the Service Tax along with interest, penalties under Sections 76, 77, and 78 should be set aside under Section 80 of the Finance Act. Additionally, the appellant argued that the adjudicating authority did not provide the option of reduced penalty under Section 78, as mandated by law and supported by various judgments.

The Revenue, represented by the Assistant Commissioner, reiterated the findings of the impugned order, emphasizing the imposition of penalties under Sections 76, 77, and 78. The Tribunal carefully considered the submissions from both sides and noted that the demand for Service Tax and interest was admitted by the appellant, leaving the issue of penalties to be decided. The Tribunal found that the appellant had not disclosed the Service Tax liability to the department, indicating a suppression of facts. The Tribunal addressed the issue of simultaneous imposition of penalties under Sections 76 and 78, citing precedents, including the decision in the BCCI case, which upheld the imposition of penalties under both sections concurrently. Regarding the penalty under Section 77, the Tribunal upheld the imposition of ?5000 due to the appellant's failure to submit correct returns. The Tribunal also noted that the adjudicating authority must provide the option of reduced penalty of 25% under Section 78, as clarified by a Board Circular and supported by legal judgments. Consequently, the Tribunal reduced the penalty imposed on the appellant to 25% of the original amount, with the condition that the total dues be paid within one month from the date of the order. The appeal was partly allowed in favor of the appellant, and the miscellaneous application was disposed of accordingly.