2017 (9) TMI 1323 - AT - Service Tax

Cargo Handling service - short payment of service tax - tax with interest paid before issuance of SCN - penalty - Held that - the assessee has paid the entire duty demand along with interest before issuance of SCN and the same has been appropriated as per the order-in-original passed by the adjudicating authority. In such circumstances, the adjudicating authority ought not to have imposed penalty u/s 78 of the Act, as sub-section 3 of Section 73 states that no penalty is to be imposed when the demand, interest has been paid before issuance of SCN - imposition of penalty is unwarranted and the same is set aside - appeal allowed - decided in favor of appellant.

Summary

Issues Involved:
- Imposition of penalty under Section 78 of the Finance Act, 1994 on Cargo Handling Service providers.
- Applicability of sub-section 3 of Section 73 regarding penalty imposition.
- Interpretation of law based on precedent set by the Bangalore Bench of the Tribunal in CCE, Mangalore Vs. Shantha Satellite Vision.

Analysis:
The Appellate Tribunal CESTAT CHENNAI heard appeals related to Cargo Handling Service providers regarding the imposition of penalties under Section 78 of the Finance Act, 1994. The appeals were connected and disposed of together. The assessees were issued a Show Cause Notice for short payment of service tax, interest, and proposed penalties. The original authority confirmed the demand, interest, and imposed a penalty of ?13,38,185 under Section 78 of the Act. The assessee contested the penalty imposition, arguing that they had paid the duty demand along with interest before the issuance of the Show Cause Notice, as per sub-section 3 of Section 73 of the Finance Act, 1994. The Ld. Counsel for the assessee referred to the order-in-original and pleaded to set aside the penalty.

During the hearing, it was noted that the assessee had indeed paid the entire duty demand along with interest before the issuance of the Show Cause Notice, and this payment had been appropriated as per the order-in-original. The Tribunal observed that as per sub-section 3 of Section 73, no penalty should be imposed when the demand and interest have been paid before the issuance of the Show Cause Notice. The Tribunal cited a precedent set by the Bangalore Bench of the Tribunal in the case of CCE, Mangalore Vs. Shantha Satellite Vision to support this interpretation of the law.

Based on the above findings, the Tribunal concluded that the imposition of the penalty was unwarranted and set it aside. The appeal filed by the assessee was partly allowed by setting aside the penalty without disturbing the demand of duty and interest. Consequently, the appeal filed by the department was dismissed. The operative portion of the order was pronounced in the open court, bringing the matter to a close.