2019 (12) TMI 853 - AT - Service Tax

Rectification of Mistake - penalty amount was reduced to 25% of the tax remained unpaid after issue of show cause notice - Revenue s contention in the present application is that the deposit made by the appellant was not to the extent of ₹ 77,40,572/- - HELD THAT - There is finding on the issue of absence of any malafide on the part of the assessee. By observing so, penalty stands reduced to 25% of the remaining amount. The Revenue s only contention is that instead of ₹ 77,40,572/-, the appellant had only deposited ₹ 75,12,865/- thus the remaining amount is not ₹ 4,34,511/-, as held in the said order. The said contention of the Revenue would not require recalling of the said order of the Tribunal. If the appellant had deposited less amount and thus the remaining amount to be deposited is more, the penalty of 25% would be of the remaining tax amount - This calculation can be made by the Revenue, after intimating the assessee and giving them a chance to contest the said deposits, if so desired. ROM application disposed off.

Summary

Issues:
- Confirmation of service tax
- Reduction of penalty amount
- Discrepancy in the deposited amount
- Rectification of Tribunal's order

Confirmation of Service Tax:
The Tribunal's final order confirmed the service tax demand, with a penalty reduced to 25% of the remaining tax amount after the show cause notice. The appellant had already deposited a significant sum before the notice was issued, showing bonafide on their part. The Tribunal considered this fact in reducing the penalty.

Reduction of Penalty Amount:
The Tribunal observed no malafide on the part of the assessee, leading to a penalty reduction to 25% of the remaining tax amount. The Revenue contended that the appellant had deposited a lesser amount than stated in the order, resulting in a discrepancy. However, the Tribunal found that this discrepancy did not warrant a recall of the order, as the penalty would be calculated based on the actual remaining tax amount.

Discrepancy in the Deposited Amount:
The Revenue claimed that the appellant had deposited a lower amount than mentioned in the order. They sought a recall of the order based on this discrepancy. However, the Tribunal held that even if the deposit was less, the penalty would still be calculated based on the actual remaining tax amount, which could be adjusted after proper communication with the assessee.

Rectification of Tribunal's Order:
The Revenue's Miscellaneous ROM was disposed of without recalling the Tribunal's order. The Tribunal emphasized that any discrepancy in the deposited amount could be rectified by adjusting the penalty based on the correct remaining tax amount after informing the assessee and providing an opportunity to contest the deposits if needed.