2019 (1) TMI 1108 - AT - Service Tax

Penalty u/s 77 and 78 of the Finance Act, 1994 - short payment of service tax - Manpower Recruitment and Supply Agency Services - appellant has paid up the tax demand along with interest before the issuance of Show Cause Notice - Held that - It is seen that the Show Cause Notice is dated 03.09.2009 whereas the appellant has paid up the demand on 26.02.2009 and 31.03.2009 and interest on 31.03.2009. It is evident that the appellant has indeed paid the demand along with interest much before the issuance of the Show Cause Notice - Sub-Section 3 of Section 73 of the Finance Act, 1994 would come into application and the penalty imposed, therefore, cannot sustain - appeal allowed - decided in favor of appellant.

Summary

Issues:
Penalties imposed under Sections 77 and 78 of the Finance Act, 1994.

Analysis:
The case involved penalties imposed under Sections 77 and 78 of the Finance Act, 1994 on the appellant, who provided Manpower Recruitment and Supply Agency Services. The Original Authority confirmed the demand, interest, and penalties, which were upheld by the Commissioner (Appeals), leading to the appeal. During the hearing, the appellant contested only the penalties imposed, not the demand or interest. The appellant had paid the service tax along with interest before the Show Cause Notice was issued, which was highlighted by the appellant's counsel. The respondent argued that the appellant had not paid the entire tax liability along with 25% penalty within the prescribed time, justifying the imposed penalty.

The Tribunal noted that the appellant had indeed paid the tax demand along with interest before the issuance of the Show Cause Notice, as evidenced by the payment dates preceding the Notice. Referring to Sub-Section 3 of Section 73 of the Finance Act, 1994, the Tribunal emphasized that since the appellant had paid the demand along with interest before the Notice, the penalty imposed could not be sustained. The Tribunal cited a precedent from the Honorable High Court of Karnataka to support this reasoning, leading to the conclusion that the penalties imposed could not be upheld and needed to be set aside.

Consequently, the Tribunal modified the impugned Order by setting aside the penalties while maintaining the demand and interest. The decision clarified that no other changes were made to the Order, and the appeal was partly allowed with any consequential reliefs as per the law. The judgment was dictated and pronounced in open court by the Tribunal.