2018 (5) TMI 781 - AT - Service Tax

Penalty u/s 78 - case of appellant is that since on the date of issuance of the SCN, there was no outstanding liability against the appellant towards the Service Tax and interest demand - Held that - the matter has not been properly adjudicated inasmuch as, the submissions of the appellant has not at all been considered. Thus, the matter should go back to the original authority for recording of specific findings with regard to eligibility of Cenvat Credit to the appellant. The adjudicating authority should properly analyze the provisions of Section 78 for arriving at a conclusion whether, in the eventuality, when the entire adjudged amount had been deposited before the issuance of show cause notice, can penalty be imposed under Section 78 of the Act. He should also discuss imposition of penalty under Section 77 of the Act. The matter is remanded to the original authority for deciding the issue afresh - appeal allowed by way of remand.

Summary

Issues:
- Appellant's liability to pay penalty under Section 78 of the Act.
- Denial of Cenvat credit to the appellant.
- Proper adjudication of the matter by the original authority.

Analysis:

1. Appellant's liability to pay penalty under Section 78 of the Act:
The appellant provided "Debt Recovery Agent Service" to Banks and Financial Institutions but failed to deposit Service Tax and file ST-3 Returns. The Department issued a show cause notice seeking recovery of Service Tax and interest. The adjudication order confirmed the Service Tax demand and imposed penalties under Sections 77 and 78 of the Finance Act, 1994. The Commissioner (Appeals) reduced the penalty under Section 78 to 50% of the Service Tax demand. The appellant argued that since the entire amount was deposited before the show cause notice, no penalty should be imposed under Section 78. The Tribunal found merit in this argument and remanded the matter to the original authority to analyze the provisions of Section 78 and decide on the imposition of penalties under Sections 77 and 78.

2. Denial of Cenvat credit to the appellant:
The appellant claimed Cenvat credit, which was mentioned in the adjudication order but denied by the authority stating it was not applicable. The Tribunal observed that the matter was not properly adjudicated as the authority did not consider the appellant's submissions regarding the Cenvat credit. The Tribunal directed the original authority to record specific findings on the eligibility of Cenvat Credit for the appellant, indicating that the matter should be reconsidered and properly addressed.

3. Proper adjudication of the matter by the original authority:
The Tribunal emphasized the need for proper adjudication by the original authority. It noted that specific findings were lacking regarding the eligibility of Cenvat Credit and the imposition of penalties under Sections 77 and 78 of the Act. Therefore, the Tribunal remanded the matter to the original authority for a fresh decision based on the observations made, ensuring a thorough analysis of the relevant provisions before reaching a conclusion.

In conclusion, the Tribunal allowed the appeal by remanding the matter to the original authority for a comprehensive reconsideration, focusing on the issues of penalty under Section 78, denial of Cenvat credit, and overall proper adjudication of the case.