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2017 (10) TMI 562 - HC - Service TaxLevy of penalty at reduced rate of 25% of tax - Principles of Natural Justice - The appellant stated that the service tax and interest had been deposited prior to issuance of Show Cause Notice and Adjudication Order; the penalty under Sections 76 and 77 of the Finance Act is not mandatory Whether the Show Cause Notice dated 29.09.2010 and the Order-in-Original dated 04.05.2012, wherein the Additional Commissioner reduced the penalty to 25% of the imposed penalty of ₹ 13,36,869/-, if the same is paid within 30 days, which came to be confirmed by the order impugned in the present appeal, are sustainable? Held that - the appellant had contravened the provisions of Section 68 of the Finance Act, 1994, read with Rule 6(1) of the Service Tax Rules, 1994 and short- paid the interest for the earlier period also. The appellant has collected the tax amount from their customers, but had not paid the same to the Government Exchequer and only after pointing out by the Audit authorities, they have paid Service Tax vide five challans dated 31.12.2009, 06.01.2010, 07.01.2010, 01.01.2010 and 19.02.2010 along with ₹ 1,72,273/- towards interest and a sum of ₹ 71,566/- through utilization of CENVAT Credit towards their service tax dues - Moreover, though the appellant has collected the service charges along with the service tax amount during the period April 2008 to December 2009, appellant had not deposited such service tax into the Government Exchequer in time nor had intimated the department the details of such receipts in their ST3 Returns filed during the material period, which is not disputed by the appellant herein. Therefore, the appellant has contravened Section 70 of the Finance Act,1994 read with Rule 7 of Service Tax Rules, 1994 - the appellant has intentionally suppressed the service tax collected from its customers and failed to remit the same in the Central Government s Account for the period 2008-09, with an intention to evade payment of tax. In the Order-in-Original, the Additional Commissioner, only on the fact that the appellant herein have made payments during different periods within a span of four months that too, after the audit conducted by the Officers of the Internal Audit, Commissionerate of Chennai, had taken a lenient view by reducing the penalty to 25% of the imposed penalty amount of ₹ 13,36,869/- if the same is paid within 30 days. The Additional Commissioner has used his discretionary power, which he is empowered under Section 78 of the Act - The reduction of penalty from the original amount to 25% is not contrary to Section 78 and hence, it is valid. The appellant is directed to remit 25% of ₹ 13,36,869/- within 30 days from the date of receipt of this order, failing which interest of 12% p.a should be levied till the date of payment - petition dismissed.
Issues Involved:
1. Jurisdiction and exercise of excessive jurisdiction by the first respondent. 2. Violation of principles of natural justice by the first respondent. 3. Imposition of penalty under Section 78 of the Finance Act, 1994. 4. Applicability of suppression of facts for invoking extended period of limitation. 5. Appropriateness of the Show Cause Notice under Section 73(3) of the Finance Act, 1994. 6. Payment of service tax and interest prior to the issuance of the Show Cause Notice. 7. Applicability of the Central Board of Excise and Customs circulars on non-imposition of penalty. Issue-wise Detailed Analysis: 1. Jurisdiction and Exercise of Excessive Jurisdiction by the First Respondent: The appellant contended that the order passed by the first respondent was without jurisdiction and involved excessive jurisdiction. However, the court did not find merit in this argument, as the first respondent acted within the scope of its authority under the relevant provisions of the Finance Act, 1994. 2. Violation of Principles of Natural Justice: The appellant argued that the first respondent passed a non-speaking order without considering the grounds of appeal raised by the appellant, thus violating the principles of natural justice. The court noted that the first respondent had not recorded any findings on the grounds raised by the appellant, which was a procedural lapse. 3. Imposition of Penalty under Section 78 of the Finance Act, 1994: The appellant challenged the imposition of penalty under Section 78, arguing that there was no suppression of facts with intent to evade payment of service tax. The court observed that the appellant had collected service tax from its customers but failed to remit the same to the government. The Additional Commissioner found that the appellant had contravened provisions of the Finance Act, 1994 and Service Tax Rules, 1994, justifying the imposition of penalty under Section 78. 4. Applicability of Suppression of Facts for Invoking Extended Period of Limitation: The appellant argued that there was no fraud, collusion, or suppression of facts that warranted the invocation of the extended period of limitation. The court found that the appellant had intentionally suppressed the service tax collected from its customers and failed to remit it to the government, justifying the invocation of the extended period of limitation. 5. Appropriateness of the Show Cause Notice under Section 73(3) of the Finance Act, 1994: The appellant contended that the Show Cause Notice should not have been issued as the service tax and interest were paid prior to its issuance. The court noted that the Show Cause Notice was issued under Section 73(1) due to the suppression of facts by the appellant, and thus, the provisions of Section 73(3) were not applicable. 6. Payment of Service Tax and Interest Prior to the Issuance of the Show Cause Notice: The appellant argued that they had paid the service tax and interest before the issuance of the Show Cause Notice, and therefore, no penalty should be imposed. The court observed that the appellant paid the service tax and interest only after the audit pointed out the discrepancies, and thus, the penalty under Section 78 was justified. 7. Applicability of the Central Board of Excise and Customs Circulars on Non-imposition of Penalty: The appellant cited various decisions and circulars from the Central Board of Excise and Customs that allowed for non-imposition of penalty if the service tax and interest were paid before the issuance of the Show Cause Notice. The court held that these circulars and case laws were not applicable in cases involving suppression of facts and invocation of Section 73(4) and Section 78. Conclusion: The court dismissed the Civil Miscellaneous Appeal, confirming the orders passed by the authorities below. The appellant was directed to remit 25% of the penalty amount within 30 days from the date of receipt of the order, failing which interest of 12% per annum would be levied until the date of payment. The court found that the grounds raised by the appellant had already been analyzed by the authorities below and did not warrant any modification.
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