2007 (4) TMI 193 - AT - Service Tax

C/F agent delay in payment of tax in prescribed time - appellant paid the penalty imposed by adjudicating authority u/s 76 further enhancement of penalty under section 76 by commissioner in revision order - Revisionary Authority has not considered the actual days of delay - Since the issue requires to be re-worked based on the data and without expressing any opinion on merits, the impugned order is set aside and the matter is remitted back to the lower authority

Summary

Issues:
1. Penalty enhancement under section 76 of the Finance Act, 1994.

Analysis:
The appeal in question was filed against the Order-in-Revision dated 21-2-2006. The case revolved around the appellant, who provided clearing and forwarding agent services, failing to register for service tax when the services became taxable. Although the appellant eventually registered for service tax on 27-10-1999, they did not pay the tax within the prescribed time frame. Consequently, a show-cause notice was issued demanding the unpaid or late-deposited service tax along with penalties. The adjudicating authority imposed a penalty of Rs. 10,000 under section 76 of the Finance Act, 1994, which the appellant paid. Subsequently, the Commissioner issued another show-cause notice proposing an enhancement of the penalty, which was contested by the appellant. The Commissioner, in his order dated 21-2-2006, imposed an equivalent penalty on the appellant.

The appellant argued through their advocate that the penalty enhancement was unjustified as they had deposited the service tax, and any delay was incorrectly interpreted by the Commissioner. The advocate presented calculations showing that the penalty should be lower based on the actual number of days of delay in tax payment. On the other hand, the Departmental Representative contended that the issue of delay should have been raised before the lower authority and could not be raised at this stage. After considering the arguments and reviewing the records, the Tribunal found that the penalty calculation was based on incorrect data as the actual days of delay were not properly considered by the Revisionary Authority. Therefore, the Tribunal set aside the order dated 21-2-2006 and remitted the matter back to the lower authority for a reconsideration based on the factual details of the case.

In conclusion, the Tribunal allowed the appeal by way of remand, emphasizing the need for a reevaluation of the penalty imposition considering the accurate days of delay in service tax payment. The decision highlighted the importance of factual accuracy in determining penalties under section 76 of the Finance Act, 1994, and the necessity for a thorough review based on precise data before imposing or enhancing penalties in such cases.