2018 (2) TMI 834 - AT - Service Tax

Goods Transport Agency Service - benefit of reduced penalty u/s 78 - Held that - For availing reduced penalty of 25%, the assessee has to deposit the adjudged tax with applicable interest along with 25% of the penalty imposed under Section 78, within 30 days of the receipt of adjudication order - Admittedly, in the present case, the time limit of 30 days has not been followed by the appellant/assessee. There is no provision to extend such time limit - benefit of reduced penalty not allowed. Penalty u/s 76 - Held that - when penalty has already been imposed under Section 78, we hold that prior to amendment in Section 78 w.e.f. 10.05.2008, there is no bar in imposing penalty under both the sections - penalty u/s 76 upheld. Appeal allowed - decided in favor of Revenue.

Summary

Issues:
1. Non-availability of reduced penalty under Section 78 for the appellant/assessee.
2. Non-imposition of penalty under Section 76 as raised by the Revenue.

Analysis:
1. The appellant, engaged in the manufacture of slurry explosives and detonating fuse, was registered for service tax under the category of "Goods Transport Agency." The appellant received transport services during Jan. 2005 to September 2008. The Original Authority confirmed a service tax liability of ?2,83,722 and imposed penalties under Sections 76, 77, and 78 of the Finance Act, 1994. On appeal, the Commissioner (Appeals) set aside the penalty under Section 76 but upheld the tax liability, stating that the appellant did not deposit 25% of the penalty amount under Section 78 within 30 days, thus not qualifying for the reduced penalty.

2. The appellant was aggrieved by the non-availability of the reduced penalty under Section 78, while the Revenue was concerned about the non-imposition of penalty under Section 76. The Tribunal noted that the provisions of Section 78 require the assessee to deposit the adjudged tax, applicable interest, and 25% of the penalty within 30 days to avail the reduced penalty. As the appellant did not meet this requirement, the reduced penalty was not applicable, as per a judgment by the Hon'ble Delhi High Court in the case of Principal Commissioner of Service Vs. Tops Security Ltd.

3. Regarding the Revenue's appeal for non-imposition of penalty under Section 76, the Tribunal clarified that prior to the amendment in Section 78 from 10.05.2008, there was no prohibition on imposing penalties under both Sections 76 and 78. This interpretation was supported by judgments from the Hon'ble Delhi High Court and Kerala High Court. Therefore, the Tribunal upheld the finding of the Commissioner (Appeals) on the non-availability of reduced penalty under Section 78 for the appellant but set aside the decision regarding penalty under Section 76, stating that it was rightly imposable for the period before 10.05.2008.

4. In conclusion, the appeal by the Revenue was allowed, and the appeal by the appellant was dismissed. The cross objection by the appellant was also disposed of accordingly. The Tribunal's decision was pronounced in open court, bringing closure to the legal proceedings.