2018 (5) TMI 976 - AT - Service Tax

Penalty u/s 76 - appellant had delayed crediting of service tax to the Government Account - Manpower Recruitment or Supply Agency service - Held that - Admittedly, the assessee had paid both the service tax and interest for its delayed payment before the issue of SCN - In similar set of facts, in assessee s own case, the Hon ble Karnataka High Court in the case of COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX Versus M/s ADECCO FLEXIONE WORKFORCE SOLUTIONS LTD. 2011 (9) TMI 114 - KARNATAKA HIGH COURT , has held that the Authority / Department should not serve any SCN and penalty under Section 76 of the Act, is not leviable - Penalty set aside - appeal allowed - decided in favor of appellant.

Summary

Issues:
- Delayed crediting of service tax to Government Account
- Demand of interest on Service Tax
- Appropriation of already paid interest amount
- Imposition of penalty under Section 76 of the Finance Act, 1994
- Appeal against imposition of penalty

The judgment by the Appellate Tribunal CESTAT Bangalore involved a case where the appellant, a Manpower Recruitment or Supply Agency service provider, faced scrutiny by the Department for delaying the crediting of service tax to the Government Account between October 2002 and November 2005. A show-cause notice was issued demanding interest on Service Tax amounting to ?5,48,38,111. The appellant had already paid ?18,10,433 as interest before the notice. The Department also proposed penalty under Section 76 of the Finance Act, 1994.

During the adjudication proceedings, the demand of interest was confirmed, and a penalty under Section 76 was imposed. The appellant, aggrieved by the penalty imposition, filed an appeal. The appellant argued that since they had paid the full duty amount along with interest before the show-cause notice, the penalty under Section 76 was not justified. They cited a judgment by the Hon'ble Karnataka High Court to support their position.

After hearing both parties and examining the records, the Tribunal noted that the appellant was contesting only the penalty under Section 76, as the interest had already been paid. Referring to the Karnataka High Court judgment, the Tribunal observed that once the service tax and interest are paid before the issuance of a show-cause notice, authorities should not initiate penalty proceedings under Section 76. Consequently, the Tribunal set aside the order imposing penalty under Section 76 and allowed the appeal of the appellant.

The judgment highlighted the importance of timely payment of service tax and interest, emphasizing that once these amounts are settled before the issuance of a show-cause notice, penalties under Section 76 should not be levied. The decision provided clarity on the procedural aspects of penalty imposition in cases of delayed tax payments, aligning with the legal principles established by previous court judgments.