2009 (6) TMI 78 - AT - Service Tax

Waiver of penalty u/s 80 reasonable cause - . Commissioner has observed that the whole tax liability with interest and penalty of 25 per cent has been paid by the appellants. He has also observed that the nature of services rendered by the appellants is a category where customers seldom pay service tax. He has also taken note of the fact that appellants had not collected the service tax from their customers. He has also observed that the issue before him was only penalty under section 76 and other issues were not before him. I find that Commissioner (Appeals) has given valid reasons for his conclusion to reduce penalty and take lenient view under section 80 of Finance Act 1994.

Summary

Issues:
1. Appeal against enhancement of penalty under section 76 on three respondents engaged in providing cable service due to non-payment/short-payment of service tax.

Analysis:
1. The appeal was filed by the revenue against the decision of the Commissioner (Appeals) regarding the penalty imposed under section 76 on three respondents providing cable service. The respondents had paid the service tax with interest before the show-cause notice was issued, and the penalty under section 78 was also paid within 30 days, reducing it to 25 per cent. The respondents sought relief only on the penalty under section 76. The Commissioner (Appeals) reduced the penalty after considering the circumstances.

2. The revenue argued that since the penalty under section 78 was upheld, there was no reasonable cause for non-payment of service tax, and hence, the penalty under section 76 should not have been reduced. The respondents did not appear in person but submitted written arguments. They explained that they had paid the service tax even though they had not collected it from their customers, and one of the main appellants had passed away. They also mentioned the challenges faced as small-scale operators in paying the service tax.

3. The Tribunal considered the submissions from both sides. The Commissioner (Appeals) noted that the appellants had paid the entire tax liability with interest and a reduced penalty of 25 per cent. He recognized that the nature of services provided by the appellants rarely involved customers paying service tax directly to them. The Commissioner also observed that the issue before him was limited to the penalty under section 76. The Tribunal found that the Commissioner had valid reasons for reducing the penalty and taking a lenient view under section 80 of the Finance Act, 1994. Since there was no challenge to the penalty under section 78, the Commissioner appropriately focused only on section 76. Therefore, the Tribunal rejected the revenue's appeals, upholding the Commissioner (Appeals)'s decision to reduce the penalty.

This detailed analysis of the judgment provides a comprehensive understanding of the issues involved and the reasoning behind the decision taken by the Appellate Tribunal CESTAT, AHMEDABAD.