2018 (6) TMI 1081 - AT - Service Tax

Business Auxiliary Service - intent to evade not present - the Appellant immediately paid the amount even before issue of SCN - Held that - Since the non payment was detected from books produced before the officers, there is no element of suppression involved - When penalty has not been imposed on portion of demand on the ground that there is no suppression, in that case it cannot be said that in respect of another portion there has been suppression. Since the Commissioner (Appeals) has held that in respect of portion of demand, the suppression is not applicable, in that case it cannot be alleged for the earlier period portion also. Penalty set aside - appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Imposition of penalty under Section 78 on service tax demand.
2. Eligibility for reduced penalty under Section 78 (1) (ii).
3. Clubbing of separate demands for penalty calculation.

Analysis:
1. The appeal was filed against the Order-in-appeal passed by the Commissioner (Appeals) demanding short paid service tax along with penalty under Section 78 on "Business Auxiliary Services." The Appellant paid the demand amount and interest before the show cause notice was issued. The adjudicating authority confirmed the demand and penalty. The Appellant contested the penalty on a portion of the amount and did not deposit the penalty on that specific amount. The Commissioner (Appeals) calculated the penalty incorrectly, leading to the appeal by the Appellant against the penalty imposition.

2. The Appellant argued that the penalty was wrongly imposed as they were not liable for any penalty. They contended that the demands for service tax and service tax credit were separate and should not be clubbed for penalty calculation. The Appellant claimed eligibility for a reduced penalty of 25% on a specific amount, which they had already paid. The Commissioner (Appeals) did not consider the separate nature of the demands, leading to the appeal by the Appellant against the penalty decision.

3. After hearing both sides and reviewing the case records, the Tribunal found that the demand was based on an audit objection, and the Appellant had promptly paid the amount before the show cause notice was issued. The Tribunal noted that since no penalty was imposed for a portion of the demand due to lack of suppression, it could not be alleged for another portion. The Tribunal concluded that no penalty under Section 78 was applicable on the demand in question, as suppression was not established. Therefore, the impugned order was modified accordingly, and the appeal was allowed with any consequential relief.

This judgment clarifies the principles governing the imposition of penalties under Section 78, the eligibility for reduced penalties, and the importance of considering the separate nature of demands for penalty calculation purposes.