2017 (12) TMI 1501 - AT - Service Tax

Penalty u/s 76 and 78 - non-payment of service tax - Management, Repair and Maintenance Service - Held that - there is no suppression on the part of the assessee to attract Section 78 - penalty u/s 78 set aside. Penalty u/s 76 - Held that - the appellant has already paid service tax of ₹ 7,38,873/- and also penalty under Section 78 amounting to ₹ 1,86,765/- being 25% of the penalty imposed and penalty under Section 76 amounting to ₹ 1,35,300/- and penalty under Section 77 ₹ 1,000/- and interest of ₹ 1,43,802/- as per the challans attached with the appeal. Since the assessee has paid the penalties under Section 76 and 78 which are not warranted and in view of my discussions above, I partially allow the appeal of the appellant and drop the penalties imposed under Section 76 and 78. Penalties set aside - appeal dismissed - decided against Revenue.

Summary

Issues:
Appeal against penalty under Section 76 and Section 78 of the Finance Act, 1994.

Analysis:
The appeal was directed against an order passed by the Commissioner (A) setting aside the penalty under Section 76 but not dropping the penalty under Section 78. The Department also filed an appeal against dropping the penalty imposed under Section 76. The appellants were engaged in providing services under "Management, Repair and Maintenance Service." The Department issued a show-cause notice alleging incorrect payment of service tax, leading to the demand confirmation by the Joint Commissioner. The penalties imposed included those under Section 76, Section 78, and Section 77. The Commissioner (A) dropped the penalty under Section 76 but did not provide a clear finding for upholding the penalty under Section 78. Both parties appealed to the Tribunal, and since the issues in both appeals were identical, they were disposed of together.

The appellant argued that dropping the penalty under Section 76 alone, without dropping the penalty under Section 78, was not legally sustainable. The Commissioner (A) observed that there was no suppression of facts to evade tax and that imposition of penalty under Section 78 was not warranted. The appellant contended that since there was no intent to evade tax, no penalty under Section 78 should be imposed. On the other hand, the Department argued that the penalty under Section 76 was wrongly dropped and that the penalty under Section 78 should not have been set aside.

After considering the submissions and the impugned order, the Tribunal found that the Commissioner (A) had correctly observed that there was no suppression to attract Section 78. It was deemed incorrect to impose the penalty under Section 78 when there was no intent to evade tax. The Tribunal noted that the appellant had already paid the service tax and penalties under Section 76 and 78. Therefore, the Tribunal partially allowed the appeal, dropping the penalties imposed under Section 76 and 78. The Department's appeal was dismissed as the dropping of the penalty under Section 76 was found to be appropriate.

In conclusion, the Tribunal held that the penalties under Section 76 and 78 were not warranted, and the appeal was partially allowed in favor of the appellant. The Department's appeal was dismissed, upholding the dropping of the penalty under Section 76.