2009 (7) TMI 490 - AT - Service Tax

Stay/Dispensation with pre deposit valuation The appellant submits that nature of contract being renovation of old building , huge amount of goods were involved in such work for which the appellant is required to get deduction of 80% of the value of work towards material and 20 % appellant engaged in the in supply of Manpower May not be well versed with the provisions of the service tax act. In this case Tri.-(Bang.) held that penalty under Section 77 is uphold and set aside the penalty imposed under Section 76 and 78.Both the appeals are disposed.

Summary

Issues:
- Appeal against setting aside of penalty under Section 78 of the Finance Act, 1994 by the Commissioner (Appeals).
- Interpretation of suppression or misstatement with an intention to evade payment of duty under Section 78.
- Discretion of authorities to reduce penalties.
- Failure to apply for registration, pay service tax, and file returns as suppression.

Analysis:
1. The appeal was filed by the Revenue against the Commissioner (Appeals) setting aside the penalty imposed under Section 78 of the Finance Act, 1994. The impugned order upheld penalties under Sections 75(A) and 77 but found no suppression or misstatement with intent to evade duty for imposing penalty under Section 78. The appellate authority highlighted that penalty under Section 78 is justified only in cases involving suppression or misstatement with an intention to evade payment of duty.

2. The Revenue contended that the failure of the assessee to apply for registration, pay service tax, and file returns should be considered as suppression, justifying the penalty under Section 78. They argued that penalties equivalent to duty should be imposed without discretion to reduce them, citing various decisions. However, the Tribunal noted that the issue was not about the discretion of authorities to reduce penalties but whether Section 78 should be invoked based on the presence of suppression or misstatement with an intent to evade duty.

3. The Tribunal emphasized that the absence of suppression or misstatement with an intention to evade payment of duty is crucial for invoking penalty under Section 78. Merely failing to apply for registration cannot automatically be construed as suppression, especially in the evolving field of service tax. The Revenue failed to provide evidence showing mala fide intent behind the non-payment of service tax by the assessee. The law recognizes that penalties are not mandatory if there is no suppression or misstatement by the assessee.

4. Ultimately, the Tribunal found no merit in the Revenue's appeal as they did not establish any suppression or misstatement with an intent to evade payment of duty by the assessee. The decision reiterated that penalties under Section 78 should only be imposed in cases involving deliberate evasion, not mere procedural lapses. Therefore, the appeal was rejected, affirming the Commissioner (Appeals) decision to set aside the penalty under Section 78.

This detailed analysis of the judgment provides a comprehensive understanding of the issues involved and the Tribunal's reasoning behind rejecting the Revenue's appeal regarding the penalty under Section 78 of the Finance Act, 1994.