2018 (3) TMI 185 - AT - Service Tax

Penalty - tax alongwith interest paid before issuance of SCN - Held that - Section 73(3) is very clear as it says that if the tax is paid along with interest before the issuance of the SCN then in that case SCN need not be issued - In the present case it is on account of bona fide mistake that the service tax was not paid and as soon as it was pointed out by the audit party the assessee paid the service tax along with interest - in the case of Geneva Fine Punch Enclosures Ltd. 2011 (1) TMI 746 - KARNATAKA HIGH COURT the Hon ble high Court of Karnataka has held that if the duty is paid along with interest before the issuance of the SCN then the penalty cannot be imposed - appeal allowed - decided in favor of appellant.

Summary

Issues:
Appeal against dropping penalties under Section 77 & 78 - Service tax not paid on remuneration/commission to Non-Executive Directors - Interest on delayed payment - Imposition of penalties - Suppression of facts - Interpretation of Section 73(3) of the Finance Act - Applicability of case laws.

Analysis:
The appeal was filed by the Revenue against the dropping of penalties under Section 77 & 78 by the Commissioner(Appeals) in a case involving non-payment of service tax on remuneration/commission to Non-Executive Directors. The original authority confirmed the demands and imposed penalties under Sections 77 and 78 of the Finance Act, 1994. The respondent appealed, and the Commissioner(Appeals) dropped the penalties, leading to the Revenue's present appeal and the respondent's cross-objections.

During the hearing, the Revenue argued that the penalty under Section 78 should not have been dropped, citing suppression of facts detected during an audit. The respondent contended that no suppression occurred, and the penalty was unjustified, especially considering the payment of service tax with interest before the show-cause notice. The respondent also argued that Section 73(3) of the Finance Act prohibits the issuance of a show-cause notice if the tax is paid before such notice.

The Tribunal analyzed the submissions and relevant case laws. It noted that Section 73(3) exempts the need for a show-cause notice if tax and interest are paid before issuance. The Tribunal found no evidence of suppression by the respondent and cited precedents where penalties were not imposed when tax and interest were paid before a notice. The Tribunal distinguished the Revenue's cited cases and upheld the Commissioner(Appeals)' decision, emphasizing that penalties cannot be imposed if tax and interest are paid before a show-cause notice.

In conclusion, the Tribunal dismissed the Revenue's appeal, stating that the issue was favorably settled for the respondent by the cited decisions. The cross-objections were also disposed of accordingly. The operative part of the order was pronounced in open court on 28/12/2017.